Political update for October, 2013 - Paradox and the fourteenth amendment

When I was in law school I had no political understanding. I don't mean I didn't have the basic political knowledge we hope (against experience) everyone has, that is, things like separation of powers and the three branches, what democracy is, blah, blah, blah - unless you are resistant, you get that by osmosis and the little bit that is covered in school that even people like me who weren't really listening can't help but absorb. But, I was already heavily invested in the partisan warfare on which I was raised (in my case, very much on the left) and which I now regularly decry and did not understand what lay underneath it all - particularly what the other side thought important. I had long been very conversant with history up to about  the 1700s. But, despite being an American law student, I knew very little about American history. Don't think I was alone - it apparently isn't necessary to know much about history or politics at all to be a lawyer and such knowledge is not even tested in applying to law schools. I also had very little understanding about how law worked. One of the things that some professors would talk about that I could understand intellectually, but not in practical terms, was about how policies and values lay underneath the law. To me and I'm sure many other of my fellow students, it should be black and white.

But, I learned, more from self-teaching and practical experience as a litigator than school.  Now, when I read cases, that is the first thing I try to understand.  When I briefly taught some college classes in constitutional law I tried to imbue that understanding in my students as much as possible for two reasons. One, because I felt I was not taught this very well in college or law school (though I was such a lazy and disinterested student, maybe I just didn't notice) and two, because it is really important. Last, it makes it so much more exciting.

There is a case before the court now that brought all this to mind.  If you don't think it is really about policies and values, take a look at the lead respondent's name:

Bill Schuette, Attorney General of Michigan, petitioner

                                             v.

Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN) et al.

Seriously, that's the name of the respondent. If you were casting a movie, you might market it as a battle between the stodgy legally constituted represented of the state majority and the scrappy minority advocates who could care less about the rules if they hold back what they see as the interests of minorities. Sounds a little like the movie Footloose.

Technically the case is about a constitutional amendment to Michigan's constitution. You may know that Michigan has been the locus of some of the most important Supreme Court educational affirmative action cases.  These cases, of course, concern race.  

In Grutter v. Bollinger (2003), the Supreme Court held in an opinion written by Justice O'Connor (at the time, the swing vote on the court - a conservative who occasionally voted with the liberals) which was joined by the four liberal justices, that Michigan's state law school could have an admissions program that favored underrepresented minorities but also considered many other race-neutral factors, was constitutional because it had a compelling interest in promoting racial diversity, which was the official legalistic question. I'm not going to go into what compelling interest means legally, but just go with this - is promoting racial diversity in colleges so important that we will allow racial preferences for certain minorities even though it violates any reasonable interpretation of the meaning of equal protection under the law in its discrimination against whites and also Asians.

Justice O'Connor started out by discussing the last affirmative action case from 1978, University of California Regents v. Bakke, in which the court banned quotas or set asides for racial or ethnic groups. In a very divided court, Justice Powell wrote an opinion which included a statement that seems like common sense: "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." He also held though, that it there could be racial preferences  if there was a compelling interest that was "precisely tailored" to serve that purpose and which was not unduly burdensome on others who bore no fault in our racially divided history. 

Leave aside the silliness of a majority of judges on a court deciding what is a compelling interest or too burdensome to others rather than state governments, individuals or even congress, but he found only one proffered interest which fit the bill - the schools interest in a diverse student body. He was careful to note that race/ethnicity could only be one factor among other race neutral ones.

Nevertheless, jump back to 2003 when Grutter and its sister case Gratz v. Bollinger were decided. There Justice O'Connor noted that her opinion was a deviation from a central purpose of the fourteenth amendment to do away with racial discrimination of all kinds. It astonished me and many others that, reasoning that it had been about 25 years since Bakke, she concluded that: "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

In other words, we will continue to break the constitution for twenty five years. After that minorities will be caught up and we can have equal protection as required by the Constitution.

Say, what? Even two of those who joined her opinion, Justices Ginsburg and Breyer, wrote, essentially, how would we possibly know that ("one may hope, but not firmly forecast"). Though it is impossible to listen to Justice O'Connor and feel any personal hubris, this is an incredibly hubristic or arrogant statement. It would be as astonishing as if a president made the statement in 1978: "[W]e entered intervened in Vietnam in the past 15 years or so, and there are many regrets of having done so.  We expect that fifteen years from now the United States will no longer invade other countries."

Of course, other judges opposed to the majority felt very differently. Justice Thomas wrote what I thought was one of the most interesting opinions of the last decade. He quoted the former slave and then abolititionist, Frederick Douglas:

"'[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us... . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury.'  

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the [law school]. The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of 'strict scrutiny.'

No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.

 The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court's opinion. First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years. . . I respectfully dissent from the remainder of the Court's opinion and the judgment, however, because I believe that the Law School's current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months."

It's ten years later. Now the court is determining whether a state may have a constitutional provision, voted upon by its people, banning racial discrimination. And the respondent not only rejected this constitutional amendment as being discriminatory itself -- but it won. You heard me - it won! The Sixth Circuit court has held that the constitutional amendment is discriminatory and violates the federal constitution, which requires equal protection under the law.

You already know without my telling you that lawyers and judges can so pervert the meaning of the law by  "a specious and fantastic arrangement of words, by which a man can prove a horse-chestnut to be a chestnut horse."  I love to quote Lincoln with these words, though, admittedly, his use of them to argue that he was not for the political or social equality of blacks kind of takes the sting out of it. Nevertheless, the abstract point is, when a court tells us that black means white or wrong means right, we lose faith in the institution.  Yet, the Sixth District Court of Appeals has said so. Will the Supreme Court? As so often has happened since Justice O'Connor's retirement, the answer may fall upon the shoulders of Justice Kennedy, the ultimate swing vote.

I can fantasize that everyone who wants to argue about a case has to read the briefs first.  Hah. And they are interesting here. Michigan argues a common sense reading of the equal protection and case law: "They claim that the elimination of race-based policies is endorsing race-based policies."

The Sixth Circuit relied on what is known as the "political process doctrine." Whenever I write about legal topics I have to do a lot of editing and cutting and foolishly feel as if I should apologize for doing so. I do my best to be fair but even my own self imposed if verbose space limitations don't let me put down what everyone argues and opines, and try to here even if it is an impossible task. In short, the doctrine holds that laws (including State constitutions) which targets a program or policy which primarily benefits minorities or changes the political process in such a way that it puts burdens on a minority's ability to achieve his/her goals through the process, violates the federal equal protection clause. That sounds like it might be fair at first blush - but only in a vacuum.

A former litigant, Eric Russell, submitted a "friend of the court" brief at an earlier stage which provided a litany of reasons that this doctrine leads to absurd results, but I will submit my own summary of his: If  the  doctrine is a fair interpretation of the fourteenth amendment equal protection clause, probably any modern law that tries to eradicate race as a factor automatically unconstitutionally prohibits the many laws aimed at affirmatively benefitting minorities even though, as Justice Powell wrote in Bakke and pretty much everyone agrees, one of the core purposes of the equal protection clause is to eradicate race as a factor in our laws. In fact, if you take this doctrine to its logical conclusion - the equal protection clause would itself present a paradox - by its very own terms it would itself be unconstitutional. Of course, that is not the case once you recognize a point made by Michigan - "To begin, this Court has applied the political restructuring doctrine only to laws that impede protection against unequal treatment, never to laws that preclude preferential treatment." All of a sudden, it makes sense again and I believe that may, if the case goes to the State, will be the deciding distinction.

On top of that, if the doctrine applies as the schools and other advocates desire, then neither the democratically elected legislators of a state, nor the people through an amendment of the constitution have no say once an unelected state administrator puts a policy into affect that favors a minority.

The respondents in the appeal - that is the successful plaintiff in the case - argue in a different tone than the state, though much in that of some quite famous civil rights advocates. Yes, it argues black letter law it interprets as supporting it - but it starts with a quotation from one of our presidents that I believe states one of the basic tenets of what we call liberalism or progressivism:

"Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. It is stretched or stunted by the family you live with, and the neighborhood you live in--by the school you go to, and the poverty or richness of your surroundings. It is the product of a hundred unseen forces playing upon the infant, the child, and the man. . .

For Negro poverty is not white poverty. Many of its causes and many of its cures are the same. But there are differences--deep, corrosive, obstinate differences--radiating painful roots into the community, the family, and the nature of the individual. . .

Freedom is the right to share, fully and equally, in American society--to vote, to hold a job, to enter a public place, to go to school.  It is the right to be treated, in every part of our national life, as a man equal in dignity and promise to all others.

But freedom is not enough. You do not wipe away the scars of centuries by saying: Now, you are free to go where you want, do as you desire, and choose the leaders you please.

You do not take a man who, for years, has been hobbled by chains, liberate him, bring him to the starting line of a race, saying "you are free to compete with all the others," and still justly believe you have been completely fair.

Thus it is not enough to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity--not just legal equity but human ability--not just equality as a right and a theory, but equality as a fact and a result."

And should this case go in favor of the schools and groups advocating for minorities, I believe that perspective will be the deciding factor.

But, I want to argue something more. The two different perspectives in this case are central to the two prevalent ideology's views on the equal protection clause when it comes to discrimination.

In the general conservative's perspective, the clause requires equal treatment now, incorporating only present intentional discrimination, and not taking into consideration the past inequities of our country's racially unfair past. No one starts in a precisely equal status or providential circumstances with anyone else - and that is life - what counts is that they now have equal opportunity under the law. Thus, racial preferences are not permitted because they unfairly prejudice others who have no deserved guilt of their own in past unfairness.

In the general liberal perspective the past matters because it must by necessity have an effect on present circumstances. Where all cannot start in as equal circumstances, we must remedy it by providing benefits which are apparently unequal but allows for groups that have been traditionally discriminated against and have not flourished to do so. Most especially it must remedy past inequities due to skin color and ethnicity, even where the beneficiary has less merit than an excluded majority party or has not suffered at all from racial prejudice.

You could phrase the central issue a number of ways - for instance, you could say that one side sees "equality" as meaning everyone now has the same rules, though it be inherently unequal in result, and the other side believes equal means that past inequities must be remedied, perhaps hypothetically perfectly, even if it means that different rules apply to different races.  

 

You can agree or not with these perspectives. I believe they are presently considered more important in our national debate than any other constitutional issue and I am including those surrounding abortion. They have now been so engrained in us that they dominate the conversation legally, politically and culturally. I am not arguing here that it is deserving of this primacy or not.  It just is.

Ironically, the two perspectives are also completely the opposite of  the chronological directions the two ideologies traditionally look to - conservatives backwards and progressives forward.  But, this is no surprise as rule number one of partisan ideologies - they can switch their policy preferences on a dime if it suits them politically. But that is not the point of this piece and I'll visit it again another day.

While writing this post I happened to also watch Bob Costas give a little opinion piece on sport team names which contain indigent Americans or Indians references.  Costas clearly aimed at being balanced and first argued that while a number of teams have changed their names, those that remain are generally devoid of any ill intent. In fact, they were admiring and respectful just as are team names like The Patriots and The Pirates. This perspective is in accord with conservative perspectives. Then he said, but look at the name "Redskins." It is different than other similar team names and there is nothing respectful about it. It is still a slur even if the present usage is purely benign. Can we imagine a team named black skins or white skins? This perspective, which ignores whether the intent is innocuous or not, is from the liberal ideology - past prejudice counts and is not wiped clean by present intentions. Again, agree or disagree. My point is the centrality of the issue in our lives.

And though it is certainly  far more complex and concerns any number of issues, the central political debate this past month also is affected by this argument. For, much of the question of whether the government spends too much and whether it is worthwhile to suspend some of our government in order to demonstrate the importance of reducing spending, often concerns the issue of so-called entitlements and protecting the economic prospects of the lower class, a high proportion of whom are minorities.  

This debate should not be unexpected. It was inevitable. There was no equal protection clause in the original Constitution or Bill of Rights. It was written in the fourteenth amendment primarily in order to protect the rights of black Americans after the slaves were freed. Nevertheless, we could apply it as it is written, neutrally, without favoring any group. It is a basic tenet of equal protection cases that it protects individuals, not groups anyway.  But, on the other hand all three post Civil War amendment had remedial clauses empowering congress to enforce its provisions, and, logically, this can only be done by legislating as to groups, not individuals. For some, it takes little legal razzle dazzle to apply that to judges who now regularly act as legislators. The puzzle is endless as what doing so can result in is appointed judges not subject to election determining the validity of their constitution amendment as directly voted upon by the people of the State of Michigan, and, in the name of equality, ruling that only inequality of law is necessary to achieve a hoped for equality in fact.

As they say about quantum physics - if it makes sense to you, you don't understand it all.

Why I am not a conservative (or a liberal).

I was working on this all week, bit by bit, and it just got way out of hand. So, I decided to make this several parts. This part is - Why I am not a conservative and I will worry about the liberals another day. It was in a large way inspired by Friedrich A. Hayek’s Why I am not a conservative, which was a rather short essay he wrote at the end of his Constitution of Liberty in 1960. It can be found online and is worth reading, although it is a little bit dated. Though he is Hayek and I am just lowly me, I think he wrong - not in his point - but in its importance.

Just as I added "(or a liberal)" to the title of this piece, Hayek could have done so as well. However, he clearly didn’t feel it necessary, as he was much closer aligned to conservatives than to those we call liberals and he called socialists or progressives (the last one having come around again into favor). To make it more even more confusing, when you read Hayek, you must also remember that he doesn’t use “libertarian” to describe himself, although it is the closest fit today. Even though that term already existed, for some reason he didn’t seem to know it when he earlier wrote The Road to Serfdom, his most famous work, and rejected it in this essay for reasons that seem to me more aesthetic, or possibly egotistical, than anything else. Instead, he called libertarians “liberals,” using the English or 19th century meaning, which is nothing like the liberals of today (and he sort of complains that they use the name he wants to use for his group), who are closer ideologically to his use of socialist or progressive (which latter term is often preferred by some liberals nowadays). Then he distinguishes conservatives from conservatism, and, to be frank, I really didn’t understand his distinction. Confused already? No worries, as I will use the terms with which we are all familiar and brackets to make it clearer.

Hayek’s got to the real abstract essence of the conservative/liberal dichotomy. He doesn’t talk about the concrete issues of his day at all there, but almost the underlying sociology or psychology of those ideologies. Mostly, he discusses that conservatives are too resistant to change and that liberals (or progressives or socialists) are too eager for change.

I’ll let him summarize this point himself by abstracting like so: “Conservatism proper is a legitimate, probably necessary, and certainly widespread attitude of opposition to drastic change. . . Let me now state what seems to me the decisive objection to any conservatism which deserves to be called such. It is that by its very nature it cannot offer an alternative to the direction in which we are moving. It may succeed by its resistance to current tendencies in slowing down undesirable developments, but, since it does not indicate another direction, it cannot prevent their continuance. It has, for this reason, invariably been the fate of conservatism to be dragged along a path not of its own choosing. The tug of war between conservatives and progressives can only affect the speed, not the direction, of contemporary developments."

If I can take great liberties with Hayek, who took exacting care in everything he wrote, the liberal or progressive moves towards control by the state in response to change, the conservative opposes or too slowly adapts to the change and the libertarian moves towards individual liberty in accordance with the new developments.

On the other hand, he put the task of the libertarian (again, whom he called "liberals") this way: “What the [libertarian] must ask, first of all, is not how fast or how far we should move, but where we should move. In fact, he differs much more from the collectivist radical of today than does the conservative.”

In some senses, His essay is out of date because starting in the 1960s, conservatives began gravitating to a broader adoption of libertarian principals into their ideology (think Barry Goldwater and William Buckley) and nowadays, many conservatives, sure of their (imagined) adherence to original principles or fundamentalism as any religious zealot might be, believe that has always been the case.

But, that history is a side issue I won't expand on here and I'll move along to why I believe he is wrong. I'm certain the question he poses for libertarians is also the questions liberals and conservatives feel they are asking too - deciding where to move (or what to do), and other motivations, like resistance or proclivity for change, would be unconscious or perhaps inherent in the way they tended to think. But, it is almost as if he is suggesting that libertarians are somehow immune to psychological or sociological forces, which, whether you are one or not, is a bit absurd. You can perhaps say that libertarians might be among those who are unconsciously less interested in how fast or slow times are changing, and that is possible, but I don't think it would be anything but a factor in deciding any particular issue. Besides, it is kind of relative to the issue. Take abortion, for example. The status quo now is that some abortion must be legal. Without taking sides on the issue here, conservatives believe progress would be in affirming life values and eradicating abortion. In this case, it is they who are advancing change, and the progressives are resistant. And, a conservative wants to change the law of abortion as fast as possible. You could apply this to other issues - certain civil rights, certain criminal rights, affirmative action, and so on.

And really, what good is a general rule about who moves too fast and who moves too slow, even if it is more true than untrue in the abstract. What really matters is what an individual believes about individual issues. Does the conservative or liberal really care if they are moving too slow/too fast? Of course not. Every political minded person is at heart baby bear - and believes the way they do it is just right.

Let me now gravitate away from Hayek's essay and into my own problems with the two predominant ideologies, in terms of more concrete issues. My great problem with the conservatives is not with matters like the economy, taxation, spending, regulation, affirmative action, civil rights law or some first amendment speech issues, all of which I am at least closer to, if not beyond many conservatives in my approach.  It is their views on religion.

This shouldn't be a surprise because religion is the institution normally the most inherently conservative and dogmatic. In fact, were I in agreement with whoever will be the Republican nominee for 2012 on virtually every issue (not likely), I will have great difficulty voting for him based on his likely position on gays, American Muslims and atheists – especially now that Mitch Daniels has announced he will not be running.

Naturally, I am generalizing, as you must do in discussing politics, and there are conservatives who differ on these issues from the run of the mill conservative. But, the drumbeat from the political leaders and punditry and opinions of most “regular guy” conservatives that I know of or have read, lead me to believe there is a very strong correlation with conservatives and political/religious convictions I cannot abide. I won’t do my usual "partisans are ruining the country" song and dance either (and I know how disappointed everyone must be with that), nor will I take the most extreme conservative position on it I can find and paint the whole group with that one broad brush. I leave that to partisans. But, I want to look at the positions of some of the contenders for the nomination, who are, in fact, not known to be among the furthest right:

I’ll start and spend most of the time on Newt Gingrich because, despite the fact that some conservatives find him too liberal, he is very persuasive to conservatives on political/religious issues. Or perhaps he is the follower (as many candidates are) and his positions on Islam, atheists and gays is typical of what many conservatives believe. For example, he is one of the most outspoken on the make believe threat of Shariah law coming to America. He has gone so far as to want to "ban" Shariah law in America. Now that is interesting, because it would be a fair question to ask if he has ever read the constitution or knows any constitutional law, a subject upon which he claims to be quite familiar. Which of the most featured aspects of Shariah does he think are even possibly constitutional in America? Stoning adulterers? The death penalty for converts from Islam? Cutting the hands off of thieves? Marital rape (of which in the not too distant past some American conservatives did not disapprove). If he thinks these are possible, he must state why they are constitutional. No one among the media asks this question, of course. That’s not the way the media works. But, obviously, he would not be able to provide an answer. As he knows, the threat of Shariah law here is much akin to the yellow peril of yesteryear. Out of the millions of cases each year in America, there are only two cases those engaged in Shariah fear mongering always mention. One was a NJ case where some idiot judge let slide a Muslim who beat his girlfriend because he was just following his culture’s dictates. They very often don’t mention that it was - of course - overturned on appeal. The other case only involved a judge enforcing an agreement between practicing Muslims that they would let the Mosque elders determine their controversy. Enforcing agreements by parties to a religious process has been part of the law in America, certainly since I’ve been practicing law (25 years). It is neither new nor a sop to Shariah. From the very few cases of it I’ve seen in the past, it was Judaic law that was being used. Should we fear Levitical law in America, which also includes stoning for things like an unmarried woman engaging in intercourse? You wouldn’t like that any better than Shariah, as they share many features. And, of course, neither could a court legitimately enforce arbitration with either religion's rules that included such obviously unconstitutional punishment.

During the heyday of the Ground Zero Mosque argument he was deliberately provocative, comparing supporters of the mosque to Nazis. I approved of the mosque (really a cultural center that includes a mosque), and I would love to debate him or those who agree with him on what is more Nazi-like, supporting the first amendment right to free exercise of religion, or the demonizing of a religious group for political advantage? Hmmm? Any takers?

He also lumps together radical Muslims with the apparently dreaded atheist as a threat to America’s religions, despite the fact that last year an extensive Pew survey with a huge sampling found that atheists (lets pretend they are a threat first) made up 1.7 percent of the population, only slightly more than the 1.6 percent which are Muslims. Yet, Gingrich, who sounds delusional to me here, has stated: “I have two grandchildren -- Maggie is 11, Robert is 9. I am convinced that if we do not decisively win the struggle over the nature of America, by the time they're my age they will be in a secular atheist country, potentially one dominated by radical Islamists and with no understanding of what it once meant to be an American." He should read the Pew survey. He’ll feel a lot better. He should also read the constitution.

But, why equate radical Islamicists with atheists at all? Fundamentalist Muslims have no tolerance for atheists. If anything, the Muslim devotion to the concept of one creative being, omnipresent and omniscient cannot be rationally denied (religiously, certainly).

And why fear atheists? Is his faith so shallow that someone can threaten it by saying they don’t believe in God? Does he seriously believe that if an atheist does not believe in God, he is likely to murder a man for his ipod? Or that he will try to ban Christmas, which a poll by a religious research group last year found was celebrated by 55% of atheists? If he believes atheists are a threat to Christians and Jews, who I believe he means when he says Americans, then he really is delusional. Thomas Jefferson, who Gingrich has quoted himself on religious matters, wrote “But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg....”

And, lest we forget gays, Gingrich is against gay marriage to the degree that he found that President Obama's finding DOMA unconstitutional (I agree with Obama, believing it violates Article 4, section 1) was a very dangerous precedent, despite the fact that it is a conservative principle that presidents can do exactly that - find laws unconstitutional, which George Bush frequently did (his father as well). So have other presidents, even going back to Thomas Jefferson (I do not recall if Washington or Adams did, but Adams believed the president should not enforce an unconstitutional law). Gingrich also believes that gays openly serving in the military is destructive to it (despite all other modern industrialized countries seeming to find no problem with it). But, in 1992 he wrote: “"Homosexuals are entitled to the same rights as all Americans" . . . "what goes on in the bedroom is private, and the government should not be in the business of being 'bedroom' police." In 1993 he voted for don’t ask/don’t tell himself, but then reversed course, and desired to go back to the days where gays were simply busted out of the military.

I have no problem with politicians changing their mind (although it is politically dangerous). In fact, I expect and appreciate it. What bothers me about Gingrich is that he doesn’t own up to it, but often has a made up reason for doing so, as he recently did over the Libya invasion and even insurance mandates (2007 op ed) – “Personal responsibility extends to the purchase of health insurance. Citizens should not be able to cheat their neighbors by not buying insurance, particularly when they can afford it, and expect others to pay for their care when they need it.” An “individual mandate,” he added, should be applied “when the larger health-care system has been fundamentally changed” and 2008 in his own book “Real Change”. And, against the bailouts in 2008, he reversed course in a week, saying he supported it, claiming it was now a better bill (only $700 billion – so much better. Oh brother). Just say I changed my mind. It will even go down smoother with your own followers.

But, enough on beating up on Gingrich, which is just too easy. Tim Pawlenty I feel sorry for, as he is desperately trying to whip up some support from the conservative base, but he has done it by jumping on the easy red meat issues. Supporting (or, I guess, not to be opposed to) the Ground Zero Mosque was unpatriotic, he said. Ironically, he had previously set up a Shariah compliant mortgage program (which just really means something to do with interest – Orthodox Jews have also found a legal end round to interest on loans) in Minnesota, and then realizing it was political death in the Republican primaries, canceled it. I’m not even sure if I’m for the program because I don’t know enough about it, but, canceling it for political purposes was a craven act if there ever was one. He came out heavily against the repeal of don’t ask/don’t tell as if had been a repeal of the declaration of war against Germany and Japan (okay, okay, that's hyperbole) and said he would repeal it. He also vetoed a gay marriage bill. He recently said “The Constitution was designed to protect people of faith from government, not to protect government from people of faith.” He should read his James Madison. It was both.

And, the supposed front-runner, particularly with Mike Huckabee out of the picture (I’ve been saying he wouldn't run for many months – I thought it was pretty obvious), Mitt Romney first said there weren’t enough Muslims in America to justify a cabinet position for one, but, then made a pretty quick backtrack, saying he had no ethnic quotas and would treat people based on merit. That’s the right answer. Too bad it wasn’t his first and real one. He’s in a tougher position than the others, being an ethnic minority himself, one disliked by some other Christians. He is against gay marriage (but really just the use of the word) and was in favor of gays in the military, but is now against it – one of his well known flip-flops.

I am quite disappointed that Mitch Daniels has determined not to run as he was by far my favorite of the possible Republican candidates, and though he has some positions I don’t agree with, at least he is generally not the demonizer that Gingrich or some of the others are. He did say that “atheism leads to brutality,” which made he unhappy, but he was talking about the cruelties of communism (I could use centuries of religious extremism to date if I wanted to suggest the opposite) and I am not sure he would not qualify it if questioned closely (as if that ever happens in the media), opposes gay marriage and I believe also the repeal of don’t ask/don’t tell, but also said he had enormous respect for those on the opposite sides of the issue (which would have really hurt him in the Iowa caucuses and the debates). He also does not engage in the mudslinging at Muslim-Americans. He actually is third generation Arab-American himself and on May 4th received an award from the Arab-American Institute for focusing on the economy and avoiding anti-Arab and Muslim invective. That wouldn’t have helped him win the nomination either.

And, aside from the political/religious reasons, conservatives are as subject to all the hypocrisy, tunnel vision and outright flummery of their counterparts on the left. I'm not sure which is worse, the intentional or unintentional aspects of it. It might not matter, as whatever mental processes cloud the minds of partisans, often makes them unaware of just how biased they are being. I will give an example from this week, which I believe was unintentional and happened right before my eyes.

I was speaking with a self-described conservative (and I agree with her designation). She mentioned that she had read that Bobby Kennedy had had many affairs. I said I wouldn’t know, but could she name any women with whom he had affairs? She said Marilyn Monroe, for one, which I have researched a little (yeah, I was just, you know, curious) and it has certainly never been proven to me (not that many haven’t taken a shot at it – also that he had her murdered or murdered her himself). She could not name any others but was emphatic that there had been. She could not state any evidence, except - you know the Kennedy’s - of course he did. I asked her if she believed the accusations that George H. W. Bush had cheated on Barbara. She thought that was ridiculous. I asked if she was aware of the rumors. She was not. Personally, I cannot believe that she had not heard of it at least in the 1988 campaign, because she is politically conscious, but I expect she did not recall because she could not believe it. Of course, I can’t say whether Jennifer Fitzgerald and Bush had a long time affair, although there are a number of still living and credible people who insist they did. You can read about it online, if you like – there is nothing definitive, but there is certainly more to it than with Bobby Kennedy (and, by the way, in case you are wondering, I liked the old fellow). The point, of course, is not whether one or the other story is, but that partisanship makes us believe that negative facts are true about those political figures we don’t like and not believe them about those we do like.

I never mean any of these posts to be comprehensive (however long they may be), and there are other issues which I thoroughly disagree with conservatives in general. One, for example, is criminal law, which I won't go into here deeply, but of which I can't shake the feeling, after studying criminal law cases for over 25 years, that some of their opinions are born not out of constitutional jurisprudence, but more a conviction that those convicted must be punished irrespective of guilt or innocence, because to do otherwise would imperil our system of order and justice - which is more dangerous than punishing some innocent people to them. Possibly it is also in cases a conviction that those convicted of crimes by a jury are almost certainly guilty, and the legal system is not meant to free them on technicalities or legal principals. I admit, this is a pretty broad brush, and I would need to coalesce my thoughts and review many cases before I would feel more certain. It goes against my predilection that the state's high burden to convict (though most often it is easily met - hence all the plea deals) and that the presumption of innocence are among our most precious liberties.

As I said at the beginning - I am not a liberal either, and I will explain why sooner than later - I hope next month - in another exciting installment at deisenberg.blogspot.com, an equal opportunity nudge.

The story of Partisanship: American beginnings

To live is to experience; to experience is to form opinions; to form opinions is to be biased (Heraclitus - not really; I just made that up, but it sounds like something one of those old philosophers might have written). My bias tends to be that there is often some better middlish ground between dogmatic political positions in a society (always exceptions, of course), and whether there is or not, the best way to communicate a position is through reason and persuasion and not by sloganeering, name calling and demonization. I am somewhat in the minority with this position, and partisans on the right and left continue to believe that they will win unending victory for their side, despite over two centuries of back and forth without victory. While I would like the discussion to be more civil and less destructive, I don't kid myself that this is ever really going to happen, certainly not in my lifetime. Perhaps the best I will ever have is this revolving door of power grabs with intermittent power sharing in between. And over all, I do think we are doing a pretty good job despite our problems.

But, whatever happens, I admit the hypocrisy and ugliness of partisanship has a fascination for me, and I like to whine, scold and opine upon it. I decided to write a few posts on the topic, and this is the first, discussing some of the beginnings of it under our constitution. I have written elsewhere on what I mean by partisanship (again, as opposed to ideology) and will not repeat it here, but I am talking about demonization, character assassination, underhanded attacks and the like. One example might be - it is a matter of ideology whether you believe the health care reform act was a good idea or a bad one. Some conservatives calling end of life counseling the rise of "death panel" or liberals accusing the conservatives of wanting poor people to die faster are examples of partisanship.

Anyway, the best place to start is the beginning, as someone said (I forget who, but someone).

George Washington has a solitary place in American history. Such was his prestige, so forever unique his position as the first executive officer, so lionized by his success in the war, so respected was he for his demeanor and character, that to assail him publicly was just not effective for anyone opposed to him. He was the first and last non-partisan president, at least in the sense that he was the unanimous winner of the electoral college receiving 1 vote from each of the 69 electors his first term and nearly the same his second. Under the system at that time, the electors cast two votes each - John Adams, already a legend himself, became the vice president because he had the next highest amount - only 36 of 69 electors in 1788 - with the nine other candidates splitting the rest. Not that he was really opposed by Adams or any of the others, as they were really running for vice president.

Though federalists and anti-federalists (far fewer) now existed, they really weren't yet parties in the sense that they are today. Washington was a federalist - that is - he was one of those who supported the adoption of the constitution so that they could strengthen the federal government. Still, though he could be described as philosophically a federalist and a whig, it was his intention to be impartial, and to seek some kind of golden mean from what he believed was wise governance.

"To please all is impossible, and to attempt it would be vain. The only way, therefore, is . . . to form such a government as will bear the scrutiny of criticism, and trust to it the good sense and patriotism of the people to carry it into effect . . . ." 

His farewell address (published, not spoken) contained the following, written for him most likely by Hamilton, who finished it for him in 1796 (partially using a Madison draft made in 1792):

"They serve to organize faction; to give it an artificial and extraordinary force; to put in the place of the delegated will of the nation the will of the party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common councils and modified by mutual interests. However combinations and or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp to themselves the reins of government, destroying afterwards the very engines which have listed them to unjust domination."

But, this was long after Jefferson and Hamilton had driven him to distraction with their internecine warfare. Both were in Washington's cabinet, the offices established by congress, Jefferson as secretary of state and Hamilton the secretary of treasury until both quit in Washington's second term, Jefferson first. It was to their time as officers that some scholars trace the beginning of American party politics. To do so ignores Madison's opposition to Hamilton's seminal plans in the house and the federalists and anti-federalist battles in the convention when the constitution was hammered out. The central dispute over state rights has never been resolved.

Hamilton and Jefferson were to lead their parties until Aaron Burr, politically enemy of both, but Jefferson's vice president, put Hamilton down in a duel. No doubt, Jefferson was outmatched in the cabinet, and he was perhaps wise to leave. Washington was highly susceptible to Hamilton's energetic persuasion and Henry Knox was almost as much under Hamilton's spell as Madison was Jefferson's ("Knox joined Hamilton in everything" - Jefferson; "Knox as [Hamilton's] shadow, follows the substance" - Madison). Whereas Jefferson was timid in debate, Hamilton was like an unquenchable fire. Hamilton's recent biographer, Ron Chernow, aptly describes him as a "human word machine".

And so the two sides battled over a National bank, the public debt, honoring securities, manufacturing and the deal breaker after Jefferson had left office, the Jay Treaty, which was perceived by Jefferson and his followers as foolishly knuckling under to Britain. 

There was no need for Washington to use his cabinet as a council, but he decided to anyway, particularly during a crisis. Almost inevitably, Hamilton would get his way time and again.

Perhaps Hamilton, an unrepentant anglophile, struck first, although it is difficult to tell at this stage. The foreign affairs issue of the day almost always involved Britain, with whom relations were still strained, and France, ostensibly America's ally, who were virtually always at war or near war until the defeat of Napolean in 1815. Jefferson correctly understood that Britain meant to surround the United States by forming agreements with the forming territories on either side (Kentucky and Vermont not yet states) and wanted to negotiate with Spain to cede them Florida and Louisiana (which he accomplished almost by accident when president). Moreover, while Jefferson was a Francophile, he sought a commercial treaty with Britain on even terms and wanted to remain neutral were Britain and Spain to go to war.

But Hamilton, a schemer every bit Jefferson's equal, if not intially superior to him, had already had secret meetings with George Beckwith at the time he first reported a conversation with him in 1790 to Washington and Jefferson. Later, sent by Washington to sound out Beckwith, Hamilton played his own game. We know from Beckwith that Hamilton not only warned him about Jefferson (although not Washington), he also told him he would keep him advised of any developments. It does not appear from what we know that he was playing the double agent on behalf of Washington either.

The same year, at one of the most famous dinners in history, Jefferson, Madison and Hamilton worked out some of their difficulties concerning the public debt and funding of the government in Hamilton's favor, in exchange for the nation's capital eventually moving from Philadelphia to a spot on the Potomac River. Not surprisingly, it was representatives from Maryland and Virginia who switched votes, giving Hamilton his way. And Jefferson was pleased for the time. But, by 1792, he declared himself a "dupe" for Hamilton's "schemes," and that he had not fully understood them.

By then, Jefferson and Hamilton were deep in a subtle war under Washington's nose for the direction of the country. Jefferson, the loser in almost every political battle with Hamilton, had also grown colder to Washington. He found his administration too far from his republican principals and did not appreciate his public levees and use of a horse drawn carriage, among other trappings. But, it was Hamilton who really drew his ire. They continued to have to completely different views of Great Britain, and where Jefferson correctly recognized that Britain had no intention of helping America or treating her fairly (although his idea of peaceful coercion would later not only fail, but nearly destroy America when he was president), Hamilton again interferred in foreign affairs, possibly leaking information to Britain's envoy.

It seemed the two could agree on nothing, neither foreign or domestic. By 1792, they had made it a proxy war in the press, Hamilton hiding behind a federalist publication, John Fenno's Gazette of the United States, and Jefferson behind Philip Freneau's National Gazette.

Jefferson here made a crucial mistake. He had borrowed a copy of Thomas Paine's The Rights of Man, which he was in sympathy with, from a printer and decided to drop a note with it stating his pleasure that it would be published against "the political heresies which have sprung up among us".  He was referring to writings of the vice president, John Adams, who was still perhaps his best friend in the world. He told Madison (I believe nothing Jefferson says) that while he would call Adams a heretic to his face, he did not mean to publish, and he did his best to make up with Adams (they would later split for a long time when they competed the second time for the presidency in 1800, but became bosom pen pals again in 1812 until their death on the same day in 1826). But, he could not make up with Hamilton who was in reality the leader of the only party until then - the federalists.  With Freneau's Gazette, the second party, led by Jefferson and seconded by Madison, came to life. Call it the Democrat-Republican party, the Republican-Democrat, the Democrat, or the Republican, as you like.

Meanwhile public attention, thanks to Jefferson's goof (if it was a goof) brought the matter to Washington's attention and the stern president, demanded an explanation. On September 9, 1792, Jefferson wrote a letter to him which is astonishing for its revelation of the bitterness between the two men - as descriptive of Hamilton's nefarious activities as it was of Jefferson's whining impotence in the face of a younger but more energetic enemy. It is too long to include in full here, but as it is one of the most fascinating letters in our history, and shows how even great men, no matter how dignified and worshipped, are subject to vanity and and pride, I will give much of it and highlight the really good stuff:

"When I embarked in the government, it was with a determination to intermeddle not at all with the legislature, & as little as possible with my co-departments. The first and only instance of variance from the former part of my resolution, I was duped into by the Secretary of the Treasury and made a tool for forwarding his schemes, not then sufficiently understood by me; and of all the errors of my political life, this has occasioned me the deepest regret. It has ever been my purpose to explain this to you, when, from being actors on the scene, we shall have become uninterested spectators only. The second part of my resolution has been religiously observed with the war department; & as to that of the Treasury, has never been farther swerved from than by the mere enunciation of my sentiments in conversation, and chiefly among those who, expressing the same sentiments, drew mine from me. . . . That I have utterly, in my private conversations, disapproved of the system of the Secretary of the treasury, I acknolege & avow: and this was not merely a speculative difference. His system flowed from principles adverse to liberty, & was calculated to undermine and demolish the republic, by creating an influence of his department over the members of the legislature. I saw this influence actually produced, & it's first fruits to be the establishment of the great outlines of his project by the votes of the very persons who, having swallowed his bait were laying themselves out to profit by his plans: & that had these persons withdrawn, as those interested in a question ever should, the vote of the disinterested majority was clearly the reverse of what they made it. These were no longer the votes then of the representatives of the people, but of deserters from the rights & interests of the people: & it was impossible to consider their decisions, which had nothing in view but to enrich themselves, as the measures of the fair majority, which ought always to be respected. -- If what was actually doing begat uneasiness in those who wished for virtuous government, what was further proposed was not less threatening to the friends of the Constitution. For, in a Report on the subject of manufactures (still to be acted on) it was expressly assumed that the general government has a right to exercise all powers which may be for the _general welfare_, that is to say, all the legitimate powers of government: since no government has a legitimate right to do what is not for the welfare of the governed. . . . To say nothing of other interferences equally known, in the case of the two nations with which we have the most intimate connections, France & England, my system was to give some satisfactory distinctions to the former, of little cost to us, in return for the solid advantages yielded us by them; & to have met the English with some restrictions which might induce them to abate their severities against our commerce. I have always supposed this coincided with your sentiments. Yet the Secretary of the treasury, by his cabals with members of the legislature, & by high-toned declamation on other occasions, has forced down his own system, which was exactly the reverse. He undertook, of his own authority, the conferences with the ministers of those two nations, & was, on every consultation, provided with some report of a conversation with the one or the other of them, adapted to his views. These views, thus made to prevail, their execution fell of course to me; & I can safely appeal to you, who have seen all my letters & proceedings, whether I have not carried them into execution as sincerely as if they had been my own, tho' I ever considered them as inconsistent with the honor & interest of our country. . .  So that if the question be By whose fault is it that Colo Hamilton & myself have not drawn together? the answer will depend on that to two other questions; whose principles of administration best justify, by their purity, conscientious adherence? and which of us has, notwithstanding, stepped farthest into the controul of the department of the other?

To this justification of opinions, expressed in the way of conversation, against the views of Colo Hamilton, I beg leave to add some notice of his late charges against me in Fenno's gazette; for neither the stile, matter, nor venom of the pieces alluded to can leave a doubt of their author. . . I have never enquired what number of sons, relations & friends of Senators, representatives, printers or other useful partisans Colo Hamilton has provided for among the hundred clerks of his department, the thousand excisemen, custom-house officers, loan officers &c. &c. &c. appointed by him, or at his nod, and spread over the Union; nor could ever have imagined that the man who has the shuffling of millions backwards & forwards from paper into money & money into paper, from Europe to America, & America to Europe, the dealing out of Treasury-secrets among his friends in what time & measure he pleases, and who never slips an occasion of making friends with his means, that such an one I say would have brought forward a charge against me for having appointed the poet Freneau translating clerk to my office, with a salary of 250. dollars a year. . .  I hold it to be one of the distinguishing excellencies of elective over hereditary succesions, that the talents, which nature has provided in sufficient proportion, should be selected by the society for the government of their affairs, rather than that this should be transmitted through the loins of knaves & fools passing from the debauches of the table to those of the bed.

And so on. It's a great read and I recommend it (you can find it online). Hamilton responded the same day, and if not as long or poetically, with the same argument - it's not me; it's him:

". . . "I do not hesitate to say that, in my opinion, the period is not remote when the public good will require substitutes for the differing members of your administration . . . . I find myself placed in a situation not to be able to recede for the present. . . .

But when I no longer doubted that there was a formed party deliberately bent upon the subversion of measures, which in its consequences would subvert the government; when I saw that the undoing of the funding system in particular (which, whatever may be the original merits of that system, would prostrate the credit and the honor of the nation, and bring the government into contempt with that description of men who are in every society the only firm supporters of government) was an avowed object of the party, and that all possible pains were taken to produce that effect, by rendering it odious to the body of the people, I considered it as a duty to endeavor to resist the torrent, and, as an effectual means to this end, to draw aside the veil from the principal actors. . . .

Nevertheless, I pledge my honor to you, sir, that if you shall hereafter form a plan to reunite the members of your administration upon some steady principle of coöperation, I will faithfully concur in executing it during my continuance in office; and I will not directly or indirectly say or do a thing that shall endanger a feud. . . ."

In other words, he wasn't going to stop unless he believed Washington fixed the problem - which was Jefferson, although he offered himself as a mutual sacrifice, if necessary.  And, he didn't stop. If anything, in typical Hamilton fashion, he got worse. While not the great lyricist that Jefferson was, he could write a compelling argument faster and longer than seemed humanly possible and continued to bash Jefferson in Fenno's Gazette. Jefferson left his counter-attacks to his supporters. He was at his best when pulling strings behind the screen and he did in fact do so. Madison and Monroe came to Jefferson's aid and congress split between the two, and the two parties were solidified.
 
Both Hamiton and Jefferson believed that the union itself was at stake and that the other side would be the reason for its downfall. Partisans almost always believe that. Listen to the rhetoric today. However, at the birth of the union, when there was more grounds to worry, Washington was concerned about that too. But it was the parties warring in the press - the partisanship, and the feelings which it aroused in the public - which he believed might end it, not the competing philosophies.

I leave off here for now and will return to pick up my assault on partisanship in the future. But, if you've read this blog before, you may wonder why I seem to press upon Jefferson's flaws so often and not give Hamilton his due as often, as, at least initially, he was the worse of the two and certainly Jefferson's equal. There are reasons. For one thing, Hamilton finally undid himself. His sexual affair in the midst of his warfare with Jefferson, and his being successfully blackmailed by his lover's husband, came back to haunt him when another Jeffersonian journalist, James Callendar, threatened to out him later in the 1790s, and suspicion came upon his acts as the former secretary of treasury. His defense was interesting to say the least. He deliberately outed his adultery himself in a pamphlet in order to defend himself professionally (and fairly, it appears - he was not corrupt). He obviously considered this so important - and I'm not judging - that it was worth humiliating himself, his wife and family in so publishing. I wrote about his affair and what it wrought on March 28, 2008 in An Early Sex Scandal - another fun with the forefathers post, and it's a fascinating story. In defending himself in this fashion, he destroyed his chances of ever further elective office, had he even wanted it, although he continued to remain politically active, dominated the federalists, and for two years even secretly controlled President Adams' cabinet. But, for the public, he was done.

And while his political philosophy still holds great sway in our country in opposition to that of Jefferson's, particularly through the opinions of the future Supreme Court chief judge, John Marshall, a Hamilton protege, he has not ever enjoyed the fame that Jefferson does. It is Jefferson who is on Mount Rushmore and is undoubtedly ranked higher in America's Olympian pantheon than Hamilton. Both, whatever their faults, were great men in their own way, and perhaps character flaws such as their must often be part of the package.

Both Jefferson were abolitionists in their words, the difference being that Jefferson was a slave owner, did not free most of his many slaves when he could have, even after his death, and acted to continue slavery for the south, despite his own protestations. I do not feel bad about despising this failure, particularly as he himself considered the institution barbaric and he held himself in such high regard.

And, of course, Jefferson did get to be vice president and then president, stabbed President Adams in the back when he was vice president, nearly destroyed the economy of our country while president himself and so mangled relations with Great Britain (policies continued under Madison) that we ended up in another war with them (you can find fault on Britain's side too, of course). I could go on with an impressive list of character flaws, but I've done this elsewhere. Jefferson outlived Hamilton by 22 years, becoming and old man who covered his mistakes and faults under the guise of sage, and left a long history of duplicity and partisanship behind him.

The one where I make fun of the left and the right

If you look at the title of episodes of the show Friends in your television guide, you will see that they all start with "The one . . ." followed by a brief description. So, in tribute, I called this post, The one where I make fun of the left and the right. It would make more sense, of course, if that title wouldn't describe most of my political blogs.

The part where I gleefully point out how crazy the left is when it comes to white guilt

According to liberal theory, we can not ignore the fact of skin color, even where it much of the effects of it have been outlawed, even, in some cases presumed to exist from appearances, as it would then presumptively lead us to ignore fixing problems caused by color prejudice. Okay, I won’t even argue it here. But, apparently, given the fix Senator Reid finds himself in, when we talk about color, we may only say things which are definitively positive towards so called “people of color”.

Even Barak Obama has stated that color was a factor in some people’s voting. I think he was right – some voted against him because of color and others voted for him because of color. Why can’t Harry Reid say it?

His comments were not the least bit offensive. He, an Obama supporter, said that Obama would win because he was light skinned and spoke without a black dialect. It was a political observation. If he lost, would not everyone on the left have said, he lost because he was too dark (I think everyone agrees he speaks without a “black” dialect). Yet, the liberal world is acting as if Harry Reid said, that incompetent boob Obama will win because he’s black but not too black, the lucky stiff.

The amount of what other’s (I believe the first book about it was by a black man) called White Guilt never fails to astonish me. One fellow I know is so guilty, the only athletes he can find to praise are black, even in tennis where there is only occasionally a top rated black man, and can find only right and no wrong with blacks, with the exception of Jesse Jackson, who he waves around as a flag as proof he doesn’t favor blacks. But, that’s just one person, of course. I use him as an example.

Yet, we see this all the time. When Joe Biden, now Obama’s vice president said essentially the same thing, he too felt the need not only to apologize to Obama, who graciously accepts (but I believe is secretly embarrassed), but then also go around and apologize to every black leader they can think of, even Al Sharpton, who, if he has fought for blacks his whole life, has never once apologized for and still defends his actions in the Tawana Brawley case (did you ever pay the judgment against you?) Sharpton, long a media darling, is so racist, that he couldn’t even pile on Tiger Woods for adultery (itself annoying beyond words) without stating that he should be ashamed of himself for not cheating with a black girl too. Yet, I’ve seen him on talk shows lately and no one asks him about that obviously racist statement. Apparently, according to Mr. Sharpton (I can’t call him Reverend) even when cheating, Mr. Woods has to show his diversity by sleeping with a white woman or he is a racist. I checked to make sure this Sharpton thing wasn’t a hoax and sad to say it’s not.

But, I digress. How is it that it is okay to say that being black might hurt you in some things, but you cannot suggest that it helps you in others? Look, if I walked onto a basketball court at the same time as a black man most people who have even the least familiarity with the sport are going to suspect that he’s going to be a better player than me, including him and me. That’s a form of prejudice because it is pre-judging based on something that is probably not a real factor. And, certainly, it’s not always true. The opposite would occur if it was hockey or swimming. That’s prejudice too, even if, in our experience, blacks dominate some sports and white’s others. We know that skin color doesn’t make you good at one thing or another, in general, but certainly, white culture and black culture has led those of different colors to concentrate on different sports. What would be bigotry, as opposed to mere prejudice, by my definition, at least, is if I was not permitted to try to compete in basketball or he in hockey because of our color, as we know used to exist. Or if the foul was called on one of us because of our skin color. That would be bigotry too.

This extreme liberal attitude towards color is inherently bigoted, even if they think it is justified by all of the racism heading the other way. No one seemed to care when Obama said that some people voted for him because of his skin color, and no one much would care if Jesse Jackson said it (except for Jesse Jackson haters). But, Geraldine Ferraro was castigated for saying that Obama had an advantage (during the Democrat primaries) because he was black, in the current climate, even though she acknowledged that she had an advantage in ’84 because she was a woman. She was not forgiven by many of her Democratic “friends,” partially because campaigning going on and the sickness that goes on during that time period is extreme and beyond the scope of this post, but also because she decided to justify, and rightly so, her remarks, rather than call Obama and apologize, and, apparently, the elite list of black politicians and media figures.

I understand that some people cannot even read what I have written above without at least their gut telling them that I am a bigot and must also be a right winger; such is the power of partisanship and white guilt. Nothing I can do about that.

Harry Reid is a formidable man, despite the anger of his political enemies towards him who cannot stand anything positive said about those they disagree with. But, he certainly understands politics, or he never could have gotten the bill passed in the senate, and has shown himself good at it. The health care legislation is his greatest moment, even if it fails because the other house refuses to play ball. He bought his victory in the Senate with what in any other setting would be considered bribes. But, that’s politics, and not too many people seem to think that there is anything wrong with it (at least, if it is their team that does it). But, if I could have my moment at a town hall meeting with him, and could ask a second question (the first would be about political bribery), it might just be, “Aren’t you embarrassed to have to suck up to bigots who believe you can’t suggest that some black might have a political advantage sometimes, just because you are white?

But, let’s face it, Reid, the cagey politician, is perfectly aware what will happen. The media will have a story. They don’t care that he didn’t say anything offensive. They will put people on the air or quote them to say that they are offended by the remarks. How many of them (excepting the right wing media who certainly won’t defend their nemesis) would likely say, “C’mon, what is wrong with what he said?” That, apparently, would ruin everything for them.

So, Reid got ahead of the story and started making phone calls, cowardly apologizing. Which is why long ago, Mark Twain wrote in a letter of congressmen, “. . . the smallest minds and the selfishest souls and the cowardliest hearts that God makes”.

It would be great if people didn’t look at color when they voted, but sometimes they do. Politicians, if they want my respect, have to stop apologizing when they haven’t said anything offensive about race, just because they have lighter skin than others, and made a political observation.

Of course, the suggestion of Michael Steele, the chairman of the Republican Party, and a man I used to think something of, but now I think is a Republican liability, that Reid should step down, is also, almost humorously, absurd.

The part where I gleefully point out how crazy the right is when it comes to religion

According to conservative theory, religion has an important place in society, even government. We should all be religious and something's wrong with you if you are not. It's not like I'm comparing them to the the mullahs or the Taliban, because they are non-violent even in their rhetoric. I don't know if I've ever heard any pundit or politician ever say an aggressive word about it, although occasionally some jerk will say something a little chilling. But, as we know, the slide is not a long one – at least many of the founders and I believe so – and the First Amendment and many State constitutions protect against it – so far.

When Brit Hume, a newsman and commentator I always liked came out with his opinion last week that Tiger Woods should consider become a Christian because it offers forgiveness and Buddhism does not, he offended many people. I can’t go as far as to say I’m offended, but I am embarrassed for him. All the conservative blogs I read last week uniformly defended him as did the large number of those commenting on them. I will say I do personally know some conservatives who were embarrassed by what he said too, but they tend not to be religiously motivated Christians.

Naturally, I know there are those who couldn't read this without thinking I'm saying that he didn’t have a right to his opinion, or that Fox is somehow “wrong” for his saying it, or that something bad should happen to he or Fox because of his statement. Certainly not, and he shouldn’t even have to apologize for it.

But venue matters. Some things said in one forum are embarrassing in another. Think, for example, how offended conservative Trent Lott was, when he went to the funeral of Senator Paul Wellstone, only to listen to Wellstone’s son make a political speech assaulting conservatives. I agreed with him. Wrong place. If I speak at a funeral (which has never happened) I know to refrain, for example, from making dead baby jokes. I love dead baby jokes, but unless it’s my funeral, it’s not the right place. In fact, had Brit Hume said the same thing in many other forums, privately, or on a television show which does not have pretensions of being a news show, or in a speech he was personally invited to make, I’d likely have no problems with it at all.

But, on a news show (even if it is news commentary), to take the position that your mommy and daddy knew best (or, even if it is the minister, guru, rabbi, etc. who changed your life) and only your arational faith is best, well, sorry, but that’s just ignorant and the speaker should be embarrassed. Nor would I care if the speaker was any other religion. And, I don’t even know if Tiger Woods really is a Buddhist or takes it seriously at all. For all I know he is a Christian or an atheist. It doesn’t matter.

Here’s what many conservatives are pretending now. That Brit Hume is being accosted for stating out loud his religious faith, especially because he’s Christian. Please, our country, including the liberals, is largely Christian, who believe much like Mr. Hume believes, and most of whom celebrate Christmas. The constant whining from the right that Christianity and Christmas are being unfairly attacked is as ignoble as the left’s whining I described above. I suppose there are some people somewhere who want to attack Christianity in America, but they are very few. I do not believe going to court because you believe that governments should not be displaying Christian symbols to the exclusion of others is evidence of attacking Christianity.

But, I digress again. What exactly did I find embarrassing (for him) about his stating his personal beliefs? Now, I’m an atheist. I don’t believe that there is any being which created the universe, although I am perfectly content to say that I have no idea how it happened either. Someday, I expect that some future Einstein aided by the accumulation of human knowledge will give us some reasonable theories which we might never be able to confirm or deny, unless they can duplicate the big bang out of nothing. But, that’s for the future. Right now, no one knows the answer to these questions. Some people, I would say by far the majority of people in America, have arational faiths, that is they believe in supernatural phenomena, admitting that there is no proof one way or the other. That is often true even of those who are very certain in their faiths. I have debated many of that stripe.

For Hume to suggest on a news show, and not, say, a show about religious faith – that his religion is essentially superior way for Tiger Woods to feel better, that’s just silly. Now, he could have said “I hope he turns to whatever religion he has, as in my experience, that can really help in tough times,” or, “You know, in my faith we (blah, blah, blah) but . . . ," or, "It's for God to forgive, not me," but, he didn’t do any of this. He indirectly but certainly asserted on a news show as a news person the superiority of his faith over someone else's. Again, he has every right to his opinion, but poor judgment as to where to state it. I guess, getting older and being semi-retired, he just doesn't care.

First, call it instinct - Brit Hume doesn’t know much about Buddhism (not that I’m any expert, but at least I can say I’ve read a half dozen to dozen books about it and related religions), but like Christianity, has many sects and variety of beliefs. However, in my understanding, he is only partially correct that “forgiveness” is not a tenet of Buddhism, in the sense of a deity forgiving sins. In one of the main divisions of Buddhism, there is the destruction of negative karma through certain rituals, which I believe would be analogous to divine forgiveness.
So, there.

But, even among those Buddhists for who this is not the theology, the act of forgiveness towards others itself does play a role. In very general terms, the practitioner seeks to live and think in such a way that he becomes enlightened (bodhi or nirvana), and hopefully, will stop being reincarnated into the wheel of life, instead becoming a buddha at one with the universe. Forgive me for the brief generalization. There are actually many similarities between the theology of Christianity and Buddhism – some Buddhists entwine the two or mix Buddhism with other religions. You can Google that yourself.

Reading Ann Coulter's blog this week, I was not surprised to see her mock Buddhism by saying that practitioners try to become God. I won't even say that she is completely wrong, in a sense, if you take becoming a Buddha the same as becoming a god, but, even taking her assessment, she writes it in a way that those who don't know anything about the religion will presume some great arrogance or stupidity on the part of Buddhists for so believing. Yet, personally, I don't see why that belief would be logically any less likely than the belief of Christians that a man was the creators's son, came to earth to die for our sins, was resurrected, etc. (I think you know the story). But, Ann Coulter is not exactly famous for her fairness (although, she is one of my favorite conservative writers).

Besides all that, and not that I would ever dream of throwing Hume's own religion in his face, but, didn't Jesus say, when asked by Peter if he should forgive a transgressor seven times, that no, he should forgive him seven times seventy times (my math skills are just good enough to know that's 490 times; that's just a masochist in my book). Perhaps Hume should offer personally offer that to Woods, particularly as he is not God and has no say in who shall be forgiven.

I also suggest that Hume’s statement diminishes his own religion. He is suggesting, apparently, that as a selfish act, Woods at least pretend to be a Christian. That would certainly be a very cynical and hypocritical thing to do. I don't think it is what most theologists would approve, but, I don’t think Hume and many others would mind. I’ve always believed that people are more concerned that others accept their irrational or arational opinions, more than their rational ones. It just makes them feel better. I’m sure that Hume would say to that, “No, I meant that he should really believe it," but, sorry, I wouldn't buy it.

Last, I ask, who is Hume or anyone in the media to question Tiger Woods, knowing nothing about him or his marriage, and, keeping their own secrets as to their own and their famous and wealthy friends' pecadillos. Perhaps it is the media that should seek forgiveness.

It was as a result of those like Hume that many years ago I created the religion of "Oopsiism" (which was divinely inspired while I was reading an Archie comic book). In this religion, you did not have to fast and go to Temple to be absolved of your sins, or go to confession, or anything similar. You just had to say "Oops". Of course, we are not yet a major religion. So far, just one of us.

I will say one thing in mitigation of Hume's behavior. Sometime in the 1990s his son died, committing suicide. He has said that Christianity has become very important for him as a result of it. I can't imagine the pain of that, and, I imagine he might feel a great desire to share whatever relief it provides him. That's not justifying the remark, but maybe explaining it to some degree.

My brilliant summation where I condescendingly forgive all and say something nice about our country that often goes overlooked

Truth be told, it doesn’t make much of a difference what either Senator Reid or Mr. Hume have said in the big picture. I disagree with them, but they are not horrible things in any sense of the word. Probably it's just a slow news week. However, the motivations underlying what they said, being largely held by the opposite parties in general, is a little troubling to me or I wouldn’t have bothered writing this.

What Senator Reid and Brit Hume said trouble me for different reasons. With Senator Reid, I cannot believe that he thinks that he said anything wrong. To believe he does is so illogical as to have very little probability. With Mr. Hume, I am sure he does believe what he said, and am embarrassed for him for his ignorance and arrogance, even if it was good hearted.

Yet, in saying that, I do think how much better it is now than it has ever been before in our country concerning race and religion. For what rational person cannot say that race relations in America are not much better than they ever were and that tolerance between religious groups also is at its highest point in history. I am glad that in my little Southern town, for example, where most people are conservatives and on the average, older than most places, a black and white couple can walk hand and hand down the street and not be accosted, even if some people silently disapprove, as can a gay couple.

Think about Malaysia, where a group of Muslims have so far successfully sued a group of Christians to make them stop using the word “Allah,” which is not even native to Indonesia, but the Arabic word for “God”. Many Christians in the Middle and Far East use it exclusively for that purpose. They don't even learn the English word. This, is, of course, religious insanity, and compared to it, what either Brit Hume or Harry Reid had to say is bupkis. And, as I believe I’ve written on recently, in Jolly Old England, the high court has ruled that the government may determine who is a member of your religion if they decide you are ethnically discriminating EVEN where there doesn’t appear to be any actual ethnic discrimination.
So, thank God, says this atheist, that we live in America, which after all, is in some respects, a rational, wonderful and peaceful place.

Please write in with your comments stating how correct you believe my opinion is.