Man And His Symbols

There was an article the other day in the Atlanta Journal and Constitution in which the local head of the NAACP called for the removal of all confederate symbols and remnants from Stone Mountain. For those of you who do not know, Stone Mountain is a large granite mountain just outside of Atlanta. Among those things to be struck off, the NAACP would have us remove the images of three confederate generals atop their horses, which are carved into the face of the mountain.  

Atlanta is a unique place. Not only was it the birthplace of Martin Luther King, but it was also the place in which Margret Mitchell wrote Gone with the Wind. It was the site of many of the fiercest battles of the Civil War, and there are monuments and plaques commemorating those battles throughout the metropolitan area. Stone Mountain Park is one of those places, and every summer, thousands of visitors tour the park. They learn a little about Civil War history along the way. But in the current climate, it appears anything confederate must go. So the images of proud confederate generals riding into battle must be purged from our state and national parks, along with the battle flag of the Army of Northern Virginia.

There is no doubt that symbols are important. They convey the establishment of an ideology. A cross, for example, standing on top of a hill, conveys the message that Christians are welcome there. An American flag on the back of a pickup truck conveys patriotism. The battle flag of the Army of Northern Virginia, also known as the Confederate Flag, conveys different things to different people. That was the flag flown during an untold number of civil rights atrocities. It was the flag flown at Klan rallies and in defiance of the Civil Rights Act of 1964. That flag has a violent history, both as a battle flag during the civil war and also during reconstruction, but that violent history does not necessarily define the symbol.

It was the American flag that flew as General Sherman exterminated the Native Americans in the war to conquer the west. The American flag flew over Japanese internment camps during World War II. The American flag flew as the atomic bomb was dropped on civilians, as Tokyo and Berlin were firebombed, and as villages were relocated in Vietnam. We do not, however, remove the American flag from our capitals or our pick up trucks. Why? Because the flag is a representation of who we are, both good and bad. One can be a patriot and still acknowledge that the American flag flew over historical events that have been characterized by many as atrocities. We guard our symbols because they convey our history.

President Obama was going to be transformative. He was going to heal the racial wounds in our society, and bring people of all colors together. Instead, his Justice Department has been racially divisive, and the President himself stumbles into difficult situations and makes them worse with racially charged rhetoric. President Obama has failed African Americans as a leader. African Americans are even more impoverished than they were when he took office. Race riots are worse. Incidents of police brutality are perceived by the African American community to be on the rise. Having failed to address the core issues underlying racial tensions, having squandered the opportunity to bring real change and power to the African American community, all that is left is to tear down the symbols. 

It is a sad truth that the civil rights movement in this country has been reduced to removing flags and destroying monuments in state parks. The phrase "Black Lives Matter" demonstrates the inertia the movement faces. The reduction of civil rights to a statement of the obvious is telling. The opportunity for real change was lost, and some must find symbolic victories to justify the emotional energy and trust placed in President Obama.

So tear down the symbols. Rewrite the history. Replace the faces on our money. Purge the South of any remnant of its conflicted past. Ignore any part of the history of the Confederacy, beyond slavery. Stamp out any remaining notion that the South has any right to quiet rebellion against a big northern government with little use for a few rednecks. As the symbolic victories mount, however, the chance for real victories diminishes even further. Symbolic victories are always expensive, they accomplish little, and they almost always come at the sacrfice of other objectives. Real change doesn't come from pealing flags off the bumpers of cars. It comes from signficiant disussion and compromise. Real change is never as easy as tearing up a granite mountain.  

Obama Confirms His Place In History As The First Adolescent President

Shortly before the Fourth of July, President Obama gave a speech to students and faculty at the University of Wisconsin. In it he said of the Republican Party:

"And I want to emphasize -- I know some of them well. They’re good people. It’s just their ideas are bad. (Laughter and applause.) And I want to emphasize that. We’re one country, we’re all on one team, and so we’re all one American family. But we all go -- we're at Thanksgiving and Uncle Harry starts saying something and -- (laughter) -- you say, “Uncle Harry, that makes no sense at all.” You still love him. (Laughter.) He’s still a member of your family. Right? But you’ve got to correct him. You don’t want to put him in charge of stuff. (Laughter and applause.) That’s all I'm saying. (Applause.)"

President Obama's "Uncle Harry" remark was taken by some to be offensive, or containing racial overtones. The old, white, senile uncle just can't get it right and has to be "corrected" by his young relative. Personally, I didn't find this remark to be racially offensive. Nor do I believe that President Obama intended to convey any offense of any kind. After all, President Obama is mostly white, was raised by his white grandparents, and probably did have to suffer through Thanksgivings as a young man with old, white, misguided Uncle Harry.

His remark was arrogant, however, and demonstrates a stunning lack of perspective. Apart from feeling the need to "correct" those with whom he disagrees, the President also discounts entirely any contribution old Uncle Harry may have to the conversation. Old Uncle Harry may be a little off his game now, but he was a veteran of two wars, witnessed the rise and fall of tyrannical regimes, lived through Watergate and lived under the constant threat of nuclear annihilation. Old Uncle Harry held down jobs during good and bad economies. He lived through 90% tax margins in the 60's, Stagflation in the 70's, the economic boom of the 80's and 90's, and the collapse of 2008. When Uncle Harry was a boy, his Uncle used to tell stories about the Great Depression and total loss. Around Uncle Harry's dinner table as a boy, his relatives discussed the New Deal, the TVA projects and World War II. Their first person accounts of those events left an impression on young Uncle Harry. One that he took with him for the rest of his life.

A generation later, Uncle Harry sits across from young President Obama at the dinner table at Thanksgiving. He watches the President snicker at him, roll his eyes at him. He patiently listens as young President Obama pronounces the truth of all things to the table of diners. Then, after listening patiently, he offers his opinion. Uncle Harry's opinion is perhaps inarticulate. He perhaps says it slowly. But, his opinion is based on a lifetime of actual experience, beyond what he read in books as a school boy. Obama winces as he hears Uncle Harry's remarks, and eagerly steps in, like any other omniscient teenager, to "correct" the older man. Because he is still just a boy, the older, wiser Uncle Harry chooses not to humiliate Obama with any further debate at the table. "He will learn, eventually," Uncle Harry says to himself.

Unfortunately, President Obama never learned. This morning, he has inked a deal with Iran, the world's largest sponsor of terrorism, ensuring that they will obtain nuclear weapons in the next 20 years. Uncle Harry would never have signed such a deal. There are only modest restraints on Iran's ability to develop delivery systems. The restraints on Iran's ability to enrich nuclear materials appear reasonable, but the inspections regime is inherently flawed. In order to have any inspection of an Iranian facility suspected of manufacturing nuclear weapons, the world must give Iran 14 days notice. Then, Iran may reject the request, at which time the world has 10 days to make a counterproposal. In other words, Iran gets 24 days to move all of its weaponry out of one facility to another during the delay. Only a child would make such a deal.

President Obama was devoured in negotiations by a number of older, much crazier Uncle Harrys. Uncle Harry might ruin Thanksgiving with talk of lowering taxes or doing away with entitlements, but the President's new Iranian Uncles ruin all holiday meals with a "Death to America" chant during grace. And let us not forget the most important failure of this deal: Iran is legally allowed to enrich Uranium at the end of a 15 year period. They will have the bomb.

And what will old, crazy Uncle Ali do with those weapons? He's already told us, while sitting across the table from the President's representatives. Death to America. Death to Israel. Down with the Great Satan.

The Absolute Right Of Conscience

Nothing infuriates an American more than being told what he or she is allowed to think or feel. The unfortunate truth is that this sentiment is ignored more often than it is followed by our politicians and political leaders. Civil debate is often drowned by a cacophony of voices, all attempting in one sound bite or another to tell us that we are bigots if we think this, or stupid if we think that. The free exchange of ideas has been replaced by the notion that some ideas are too "offensive" or "outside the mainstream" to be exchanged. If you believe "X," for example, you shouldn't have a voice. You should be shouted down, shamed, ridiculed and made to shut up. It is a sorry development, and its proponents lack historical perspective. It is neither progressive, nor does it indicate progress as a nation. In fact, quite the opposite is true, and more often than not, being called a bigot or stupid tends to make one fight harder. It does not end the debate.

In the wake of the Supreme Court's decision on gay marriage, social media has erupted in a torrent of decidedly uncivil discourse. Any one of us would be hard pressed to look at his or her Facebook page (although I seem to be the exception) and not see a wall filled with "gays vs. bigots" posts. The issue would seem so black and white. On one side, you have the "hate filled bigots" who are accused of wanting nothing short of a deprivation of all rights for homosexuals. On the other, you have a complete insistence that the total collapse of morality in America is at hand. Most Americans, somewhere in the middle, will tolerate the proverbial bomb-throwing while the initial emotions associated with the issue slowly subside. And they will subside. What Americans will not tolerate, however, is being told what to think.

Justice Alito's dissent touched on this issue:

“I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers and schools,” he wrote. “By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.”

Justice Alito's concerns, however, have not been borne out by history. For example, decades after Roe v. Wade, Americans still vigorously and publicly debate the morality of abortion. It is a principal issue in every election and, most importantly, polls have been trending against abortion since the decision. Abortion, as a popular individual rights issue, peaked with that decision and has been waning ever since. The discussion now trends more towards the limits or the rights of the unborn, an analysis avoided in the original decision. There have been few if any restrictions on the rights of Americans to publicly object to the practice or demonstrate in opposition. Churches are not yet being forced to perform abortions or pay for abortions. Public funding for abortions has been limited. In short, the debate is alive and well and no one has been relegated to "whisper[ing] their thoughts in the recesses of their homes," unless they choose to do so.

Another example is the debate over the Confederate Flag. To some, it is a symbol of hatred and racism. To others, it is a symbol of Southern heritage. To most, it's just a flag some folks put on their trucks or their hats or that may show up at a NASCAR race or in a fraternity house. The supporters of the flag are labeled "bigots" by the opponents of the flag, but that hasn't stopped a vigorous debate. You can find good, well thought out opinions on both sides. You will find rallies from advocates on both sides. It is generally accepted that people are entitled to their views, without regard to the liberal bomb-throwers or conservative firebrands. The debate will continue until there is a consensus, but even then, every American will have a right to his or her point of view and to express that view in public.

That said, being entitled to publicly express your view on any issue is not the same thing as having your view accepted by the majority. There is no entitlement to that. So, for example, if you despise Black people, you probably are not going to receive a warm welcome when you express that view in public. Justice Alito may be correct in his analysis, but only to the extent that the public at large decides that supporting traditional marriage is bigoted behavior. Unless or until that happens, it is doubtful that the moral issue has been settled by this single Supreme Court decision.

The debate is not over and, if anything, it has become more intense. It will be played out in state legislatures, elections and courts for a long time to come. The Supreme Court will also have a role to play. It will have to determine the extent to which the law will elevate gay rights above the right of Americans to object based on conscience. As I wrote yesterday, the gay marriage decision is unremarkable. It did little more than restate the fundamental principal that all Americans, including gay Americans, are entitled to equal protection under the law. And as an aside, to my conservative friends I say this: The government should never have been in the business of marriage. There are laws governing sexual behavior, like age of consent, marriage of relatives, rape, incest, and the like. But those issues are fundamentally different from marriage between two consenting adults. Outside of the health and safety context, it just isn't the government's business to say who can marry and who can't, and the laws passed for that purpose invited the Court's intervention. 

What may be remarkable is what comes next. Will the wedding cake maker or the photographer be compelled, against his or her conscience, to provide services to gay couples? In the states that have considered that issue, the answer has so far been yes. Of course, that issue hasn't been addressed by the courts in Georgia, Texas and Mississippi. Something tells me that the answer will be quite different and it will not take long for the Supreme Court to once again have to intervene. Most Constitutional scholars seem to agree that the Court will not compel anyone to provide services against their will. That would violate both the First and Thirteenth Amendments to the Constitution. Using state power to levy a fine against an objector is "compulsion" (in case you were wondering). 

Admittedly, nothing is certain. Perhaps the Supreme Court will rule the way those state courts did. What is certain is this, Americans will demand to be allowed to exercise their consciences. If the Court holds otherwise, it would be truly remarkable, and would do nothing more than rally even neutral Americans to the traditional marriage cause. 

What it will not do is end the debate.

Two Unremarkable Decisions From The Supreme Court

The dust is beginning to settle, and some of the emotion stemming from the Supreme Court's decisions on Obamacare and gay marriage is beginning to wane. There is no doubt that both issues have been hard fought and are deeply divisive in our nation. The Affordable Care Act, Obama's signature legislation, was passed without any support from Republicans and in spite of the mountain of polling showing that Americans did not want the law. The Democrats didn't care. They were going to create their new entitlement no matter what. For the first time in 50 years, they finally had the opportunity and just enough support to set up the framework under which American medicine will become socialized. All liberal fantasies are being fulfilled. Government bureaucrats (that they appoint) will control one seventh of the nation's economy. Liberals will have another powerful entitlement to use to win elections. The law has already cost companies, patients, and doctors a fortune to implement, and is less popular than ever.

But none of that is the Supreme Court's fault. As Justice Roberts said in his first Obamacare opinion: "It is not our job to protect the people from the consequences of their political choices." Elections have consequences, as the President is so fond of saying. Justice Roberts, of course, is both right and wrong in his statement. No one disputes that the Supreme Court should, in theory, exercise restraint when reviewing most legislation. Obamacare was lawfully passed and signed into law by the President. That is how our system works. Theoretically, the Supreme Court should review that law for Constitutionality only, and then move on. That is precisely what they did in both Obamacare decisions. If you don't like the result, don't vote for Democrats. At the end of the day, President Obama campaigned on Obamacare, promised radical changes to our health system and won two elections. The American people chose the conditions under which Obamacare could pass.

At the same time, Justice Robert's statement is woefully inaccurate. It is, in fact, the principal role of the Supreme Court to protect the American public from the consequences of their political choices when those political choices violate the Constitution. In fact, when first created, that was the Court's only job. The concept of "Judicial Review," didn't develop until Marbury v. Madison was decided in 1803. Before that time, the Supreme Court was the Constitutionally appointed firewall against fascism, radical ideology, and the tyranny of the majority. His statement to the contrary was unnecessary and will be viewed as an unfair swipe at the opponents of Obamacare. Justice Roberts further divided the country, and made the Court look politicized. A politicized Court is a Court without credibility. Having no army with which to enforce their rulings, the Court's credibility is its only weapon. The Court got the decision generally right, but at great cost to its prestige.

In Obamacare II, Justice Roberts again led the majority to uphold the law. He and the Court have been savaged by conservatives for "saving Obamacare" and "rewriting the legislation." These criticisms are misplaced. The Court applied the principal rule of statutory construction to Obamacare: "Where possible, interpret the law in a way that upholds it." The reason that is the principal rule of construction is because the alternative would leave the Court with far too much power. Imagine a world in which a Court could strike down any law because of a misplaced word, or a single incongruent statement in a 20,000 page bill. There would be no predictability in the law. Businesses and individuals would have no idea whether a law will be upheld or stricken on the basis of some confusing language. Every time Congress acted, implementation would have to be delayed for years while the Supreme Court reviewed the law.

To ask the Court to construe Obamacare in a way that would have destroyed it is to ask the Court to violate that most basic tenet of judicial review. The Court applied another fundamental tenet of judicial review when it looked to "legislative intent" to find the language to uphold the law. Again, this is unremarkable. For centuries, here and in other democracies around the world, courts look to the legislative record to determine what the legislature meant, within some margin of error. While I agree that the Court stretched to "rewrite" the language in the statute, that is more a reflection on the legislators enacting a poorly drafted law than it is the Supreme Court.

Fast forward two days. Justice Roberts dissented from the Court's decision on gay marriage. Gay marriage is another tough issue that deeply divides the nation. Unlike Obamacare, however, most Americans actually support the legalization of gay marriage. Regardless of any religious views, it is a fact that homosexuality is as old as the world itself. So is traditional marriage. This is not some new development in the world. For example, our founding fathers undoubtedly knew that the Greeks were practicing homosexuals when they began borrowing ideas on democracy. It did not stop our founders from embracing those ideas, along with much of the architecture and rhetoric used by a society that not only tolerated homosexuality but often encouraged it. 

Still, gay marriage represents a shift in American morality for which a large minority of Americans are not ready. The debate had been on-going and opinions were being slowly changed. The democratic process was working, and homosexuals were making progress on their issue. The Supreme Court stepped in and, in the words of one of my favorite columnists, "short-circuited the process." Critics argue that the Court should have allowed the democratic process to work, and that it was supremely arrogant for the Court to intervene. Neither argument is compelling.

The basis for the Court's ruling is the Fourteenth Amendment to the Constitution. The relevant portion of the 14th Amendment is: 

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Fourteenth Amendment is very broad. It protects "any person" from the denial of life, liberty or property without due process. It also provides "any person" with "equal protection" under the law. "Any person" includes homosexuals. "The law" includes the marriage laws in this country. It is that simple.

This is not to say that these rights cannot be limited. Legislators may pass laws regulating marriage and even depriving two people of the right to marry, provided there is a compelling reason to do so. So, for example, prohibiting incestuous marriage has been upheld because, among other things, there is a high risk of birth defects. That reason is compelling. For decades, however, courts and legislatures have struggled to articulate any compelling reason to prohibit gay marriage. 

Opponents, of course, point to their religious beliefs. Homosexuality, they say, is condemned in the Bible and is otherwise immoral. They point to the moral decay in our society, and the decline of stable family environments. But that's where the First Amendment comes into play: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." It is the first clause that is at issue here. For the state to use the rule of law to impose the religious beliefs of one group or another on the rest of society is a direct violation of the Constitution. Gay marriage cannot be prohibited on that basis, especially where religious groups are themselves divided on the issue.

The Supreme Court's decision to strike down laws that discriminate against a specific group of people should come as no surprise. The only question the Court had to answer is whether homosexuality is a behavior or a trait. If it's a behavior, that is, if it's not inherent, then it may not be entitled to the same protections. On the other hand, if it's an inherent trait, like having black skin, then the right to equal protection is undeniable. The Court obviously believes that it is a trait, making the rest of its analysis simple.

Regardless of how you feel about these two Supreme Court decisions, the outcomes were inevitable. That said, the victory laps being taken by the White House and others serve only to deepen the divide. The right to dissent must also be vigorously protected, including the rights of the dissenters to exercise their conscience. We should all be careful in our rhetoric not to contribute to the poisonous environment surrounding these issues. 

We should also be careful not to let these divisions dictate our policy or distract us from the other problems we face. I do wonder, for example, what Vladimir Putin thought of the rainbow White House. As we scrutinize our democracy, we should remain mindful of our uniqueness. In the Middle East, for example, homosexuals are being tortured and thrown from buildings. Christians are being crucified. Jews are being targeted for extermination. Whatever oppression or disappointment any American may feel, it pales in comparison to the oppression and disappointment felt by many others in the world. 

Finally, let us also remember the stern admonitions from Justice Roberts and President Obama that elections have consequences. We are not oppressed, and we have the absolute right to change our government. We should take advantage of it.