The Deepening Divide: American Political Parties

You might be familiar with the term political parties. I think most people would conjure up images of a donkey and an elephant. Many people associate political parties with democrat and republican. In most countries, there is either no political parties or just one; or there are more than two. America is unique in having only two main parties. There may be some others but America is the best known. The point of this post is just to casually discuss the widening divide of the two main parties. I expect that with my own political compass to probably discuss the lack of a third-party.  Yesterday I was having a conversation with somebody who has some opposing views in terms of politics. The conversation really made me start to think about the political parties. In recent years, it seems that the democrats and republicans have gone to further extremes. Obviously if you were born in 2000 or after you probably wouldn’t notice.

You don’t have to be old to see the extremist stretch of the parties. All you have to know is a little historical context. I’m sure I have explained this before in some other post but its worth explaining again. Political parties started in America in 1776 on about the same day the declaration of independence was signed.  Typically historians will say somewhat ironically that after George Washington’s farewell address is when the parties really got going. I will get to George Washington’s farewell address too. But first lets discuss the political parties at that time. During the time before the constitution was signed, there were two sets of loosely based political beliefs. There was no actual organized parties til much later. The Federalists and the anti-Federalist. (Yes, very creative naming) The Federalists were led (loosely) by Alexander Hamilton. They believed that the constitution maintain a strong executive presence within the federal government. The anti-Federalists who led (loosely, not right away) by Thomas Jefferson. They believed that it should be the states who hold the majority of power not the federal government.

I say loosely lead because there wasn’t any organization not until after Thomas Jefferson’s presidency in 1801 to 1809. Now as for George Washington’s farewell address, this is part where its relevant to political parties: (Irony coming ahead)

I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.

It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

There is an opinion that parties in free countries are useful checks upon the administration of the government and serve to keep alive the spirit of liberty. This within certain limits is probably true; and in governments of a monarchical cast, patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.

George Washington, Farewell Address, 1796 Yale Avalon Project

So here is the ironic thing about George Washington and his address, Washington himself was not above joining a party. Throughout his presidency, he tended to call on his secretary of treasury and in the revolutionary war, his first clerk to attend to government business. Alexander Hamilton was one of George Washington’s closest confidants. He also happens to be the de-facto leader of the Federalist party. Washington was actually pretty persuaded by Hamilton’s beliefs. He felt that Hamilton had the country going in the right direction. Washington also did try to stay above the Federalist and Anti-Federalist mudslinging.

If we fast forward to just before the Civil War, we see that political parties have evolved from Federalist and Anti-Federalist to Whigs and Republican-Democrats. The names seem to be different and very much the same even ironic. However, the Whigs represented the Federalist view in many ways. The Republican Democrats represented the Anti-Federalist view. The Whigs dominated the north and the Republican Democrats dominated the south. Abraham Lincoln was the end of the Whig party and the beginning of what many call today’s Republican party. At a contested convention in 1860, Lincoln was able to swing votes to his Republican party from the majority Whigs. From Lincoln time until Teddy Roosevelt, the Republicans and Southern Democrats dominated American politics. Even now, parties tend to be very regional and sectional in popularity. Its one way to define who votes for them. Of course up til 1919, it was only white men who owned land then women’s suffrage was passed.

Teddy Roosevelt was elected by a third-party, one of the few presidents to do so. The 20th century represents a major change in the parties. After Teddy, the political extremes begin to take off. You can contrast the parties in the alternating decades of their rule. The republican decade of roaring twenties saw relaxed government meanwhile the progressive era of 1930s to 1940s  with Franklin D. Roosevelt saw the Democrats dominate because of the Great Depression. The democrats also held power during World War 2 and afterwards with Harry Truman. The 1950s saw the rise of Republicanism in Dwight D. Eisenhower, who was actually pretty moderate by today’s standards. The 1960s saw JFK and LBJ, the latter passing the Great Society, the so-called “second New Deal”. The 1970s saw even more moderates like Nixon and Carter but leaned Democrat. The 1980s is when the extremes pushed higher than ever with Ronald Reagan. Since Reagan, the Republicans have pushed for more tax cuts every year. The 1990s stay relatively moderate with Bill Clinton as a centrist democrat.

My point is that over years it seems like Democrats and Republicans seem to farther apart than ever especially today. I believe this last election really show how deep the divide came. I think when you politicians like Bernie Sanders running, whose view is more socialist than democrat, you have a problem. America always been able to stay the course and not veer to extremes. In part thanks to our constitution and our checks and balances. You know its extreme when Donald Trump is considered an acceptable candidate and is elected. I don’t have a solution to this extreme push to fringes. However, I would propose that we allow more than two dominate parties. I’m a libertarian and I take some opinions from both sides and mold them into one view. I think that being extreme politically is like being ignorant. You can irrationally argue just about anything but you won’t make progress. In order to make progress, you have to accept that there are other ways to achieving the same goals. I think one of the bests to describe the dysfunction of our political parties is that they all have the same goal with a different way to get there.So why can’t we just compromise. The reason is simple. Democrats want big government to control every aspect of our lives except abortions. Republicans want government out of lives except when it comes to abortions. We need to make our goal to make America the best it can be by any means necessary. We need to compromise. Until we can do that then the only thing that will happen is Congressional deadlock and fighting.

Thanks for reading!

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Preventing Dictator Trump: Judicial Review and Separation of Powers

An important principle of our constitution that set ups our government is that of separation of powers. It is a part of checks and balances. Separation of powers has always been a hot topic especially in the Supreme Court. It keeps our government running smoothly. It helps determine the jurisdiction of each branch of government. In order to understand the separation of powers, you have to understand Judicial Review. In middle and high school history the concept of separation of powers and judicial review is taught. Mainly because it’s on the regents. Many students sort of zone out on it because it’s not all that interesting. Once again I want to take two Supreme Court cases and review them. After briefly reviewing each, I want to put some modern context on the separation of powers and judicial review. Let’s just say when an election rolls around with a controversial president being elected, my mind goes to thinking about how the constitution allows for checks and balances that keeps our democratic president from becoming a dictator. It’s really petty to blame the election results on Russia or voter fraud. A choice was made and we should deal with it by invoking the constitution. Without further or do, I want to present Marbury vs. Madison.

Marbury vs. Madison was decided by the court in 1803 by the Marshall Court. It was unanimous decision. Now you might remember some of the facts of case from high-school. If you don’t then I suggest you read up on it here. Like usual, I want to skip directly to the questions of the case and the majority opinion. The court had to decide whether or not the officers had the right to go court over the commissions and  whether or not Section 13 of the Judiciary Act was valid? The court held that because Adams had signed the commissions they were legal and should have been given out despite Jefferson’s order to not give them out. They also voided Section 13 of the Judiciary Act because it interfered with Article 3 section 2 of the constitution. The Court had an obligation to uphold the constitution over the congressional law. Here was what the Judiciary Act, section 13 says :

That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. [NOTE:  Text in bold of particular relevance to Marbury v. Madison. (Source, here)

The Court invalidated the last part of this law in favor of the constitution.  The constitution goes against the Judiciary Act, more specifically Article 3, Section 2:

The judicial branch has jurisdiction over any case involving: 

  • The US constitution, the laws of the United States laws, treaties, or any cases involving ambassadors, other public ministers and consuls.

This particular quote is what the Supreme Court cited as their jurisdiction to hear Marbury’s case. Marbury essentially tried to argue for a broader Supreme Court jurisdiction. The Judiciary Act would have allowed that if not for the constitution’s strict view what the Supreme Court is allowed to do. Marbury vs. Madison was the first case to strike out part of a congressional law. Its become known as judicial review. This is only the first case of it, comes up again years later in the Dred Scott decision. (another blog post)

I want to go over just one more case before I bring it into a modern context. I think that one of the most interesting Supreme Court cases is McCulloch vs. Maryland. If you want to read the facts, then click here. The McCulloch vs. Maryland is not so much about judicial review but it does establish an important pecking order within our government. You may have heard of federalism. This is a case that shows what federalism. In this case, a uanimous decision was made that the state of Maryland could not tax the federal government. The question the court had to answer was simply one of federalism. Congress legally created a bank and Maryland tried to pass a bill to tax it. The court found on the basis of the 9th amendment (see my last post) or the enumerated powers amendment. The court set the precedent that federal government has constitutional power over the states. The federal government is allowed to establish banks because of the 9th amendment and the states can’t tax it because its a constitutional function. This is monumentally important case especially with the civil war later in the century. (case was decided 1819)

Marbury vs. Madison gave the Supreme Court the power to strike out congressional laws that are unconstitutional. McCulloch vs. Maryland gave the federal government the priority over constitutional functions within the states. So why are these cases so important today?  I alluded to the controversial election in the beginning of the post. I believe these two cases give the people some hope that President Trump won’t become Dictator Trump. Obviously, he has a favorable Congress and he might even get a favorable Supreme Court pending a successful nomination. But Trump and Congress still have to follow the constitution. In the end, the Supreme Court has a duty to uphold it. So no matter what happens with Trump, I think the separation of powers and judicial review will keep him in check.

Let’s quickly for example, take President Obama and his presidency. Obama’s biggest accomplishment (depends on how you look at it, failure is more accurate) is Obamacare or the Affordable Health Care Act. It was a very controversial becuase it mandated that everyone get healthcare or pay a fine. Parts of it went to the Supreme Court to be decided if they were constitutional. Some parts of it were unconstitutional and others remained. In my opinion there wasn’t enough struck down. However, I think that knowing that obviously unconstituional laws will be struck down is comforting. Nobody saw Trump getting elected. I think we all gotta have a little faith

This definitely won’t be the end of this topic, it went a little longer than I wanted but I hope to revisit it soon.  Thanks for reading!

 

Citations:

Chicago-Kent College of Law at Illinois Tech. “McCulloch v. Maryland.” Oyez. https://www.oyez.org/cases/1789-1850/17us316 (accessed December 12, 2016).

Chicago-Kent College of Law at Illinois Tech. “Marbury v. Madison.” Oyez. https://www.oyez.org/cases/1789-1850/5us137 (accessed December 12, 2016).

 

Roe vs. Wade versus Adoption

This post may be very controversial. So brace yourself because its likely you won’t agree with me. If you want to know how I feel about Abortion then I recommend you read this post that I wrote. As of late, I have been on a Supreme Court case breakdown bender. I’ve done both the first amendment and fourth amendment, you can read each those posts respectively. This post is going to be about abortion. First, I want to give a quick breakdown of Roe vs. Wade, the ground breaking court case decided in 1973. It outlawed laws against abortion except in the third trimester. However you feel about abortion, I will just be stating the courts’ decision on this. After that, I want to present my opinion on how to handle abortions in way that gives pro-lifers a peace of mind and at the same time gives women the right to choose. For starters, as a baseline I believe the government has no business intervening in abortions. Especially when it comes to paying for them. I also believe that women should have the right to choose whether to keep the baby or not. I will get into what should happen if they choose to not keep it.

If you’re not familiar with the facts of Roe vs. Wade you can read that here. Roe vs. Wade was decided whether or not Texas’ law making all abortions criminal was constitutional via the fourteenth amendment and ninth amendment. If you are not familiar with either of those amendments than here is a short explanation and a quote of another. The fourteenth amendment as it applies to this case has to do with due process and the equal protection of the law. Due process means you get a fair trial and equal protection of law means that everyone is protected under the law with no discrimination. The ninth amendment is a little more broad, it says this:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

In simple terms, the ninth amendment says that any rights not mention by the constitution can be implied if necessary. Obviously its the job of legislative branch and the Supreme Court to decide what those rights are. In Roe vs. Wade, the decision went 7-2 for Roe. The decision took into account both the 9th and 14th amendments. They found that the 9th amendment didn’t apply. They also found didn’t rule on question of when life begins. But what Justice Blackmun’s majority opinion did was layout a framework to make abortion a legal right of privacy under the fourteenth amendment. The court also decided that due to concerns of health to both mother and baby, they set up an appropriate timeframe to actually get an abortion. They ruled that having the pregnant women’s attending physician could decide to abort up until the first trimester. Most importantly, they upheld Roe’s right to make that decision to have an abortion.

A women’s right to have an abortion is probably more important than the actual abortion itself in the eyes of the constitution. I think that science has pretty much narrowed down the parameters of safety and when life begins. The court expanded the fourteenth amendment to protect the privacy of women. No matter how you feel about abortion, you have to give them credit. Obviously, a lot of opposition to this decision and even the dissenting opinions were that of where life begins and the courts’ actual jurisdiction. Many people weren’t sure the constitution actually covers it or even mentions it. However, I don’t believe it has to. This is the law of the land until another case overturns it. So you might be asking what’s the point? What’s your point? How do you plan to make both pro-life and pro-choice happy? Let’s call it a compromise like our forefathers did.

I’ve already hinted that I like the idea that women have a right to choose. I believe the constitution does protect those rights. Unfortunately, the constitution doesn’t see morals like we do. This means we need to take the moral question out of it. I’ve never been big on abortions. I don’t think they are necessary unless in a medical emergency. I believe there is only one real circumstances where abortion is necessary. The situation is where the mother or child (or both) are in danger because of the pregnancy.  In all other situations, I propose that we use adoption. Why adoption? Well for starters, it will quell the argument of over when life begins which is the main source of disagreement. But I believe that adoption is better than abortion.

For example, abortion is expensive and deadly to the fetus. Adoption is relatively cheaper because its just the care of the newborn. Adoption avoids the need for Supreme court rulings on abortion and keeps the fourteenth amendment intact. I am a man. (I don’t claim to know much) So I would almost have to think that choosing whether to raise the kid or give it up for adoption is an easier choice than raise the kid or kill it. In the beginning of the post, I mention how the government sometimes pays for abortions. I hate this. I think if you want to get an abortion you should have to pay. After all it is a choice. Making women who get abortions (Not women who were raped, they could potentially be paid by the government) pay for them would only strengthen the incentive to put up for adoption. I think that adoption gives a child who might otherwise die, a chance to live and grow up and be productive in society.

The other argument for adoption is that many couples try to have kids and fail because of many reasons, infertility and others. Regardless, these potential wanna be parents would have a larger pool of kids to adopt from. The government could spend the money they use trying to regulate abortion on making adoption easier and more streamlined. I believe that adoption provides an alternative that isn’t nearly as talked as it should be. Adoption could change everything and eliminate abortions altogether. Abortion is so controversial that nobody even likes to talk about it. The problem is that we all disagree on different points and levels. I think at the end day, we can all agree that free choice and the maintainance of life is most important to each side.

Thanks for reading!

Illegal Search and Seizure: Finds Fourth Amendment cases.

In my last post which you can read here, I wrote about flag burning and how it is protected by the first amendment. I also mentioned that I love constitutional law and it’s because of my affinity I am back with another Supreme Court related post. The nitty-gritty of the constitution really excites me. Don’t ask me if that is good or bad because I honestly don’t know. But what I do know is that I think constitutional law is rarely considered in every day conversation unless you are a lawyer, judge, paralegal or politician. So I am hoping to make it a topic of interest. Today I want to present to you the fourth amendment. I find the fourth amendment to be an interesting one. It becomes especially interesting in the light of protests against police violence. Before I introduce the two cases which I believe every citizen needs to know about; I want to (hopefully) re-introduce the fourth amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The fourth amendment sounds pretty straightforward. It’s wording is less vague than some of the other amendments. The amendment covers two main areas in criminal law, search and seizure. The problem with the amendment is that since 1789, the technology boom has dramatically changed the meaning of search and seizure as it pertains to the constitution. The video camera’s evolution from a huge solid brick on someones shoulder to something microscopic enough to fit in a phone that goes in your pocket. The constant stream of live video has forever altered the fourth amendment. I believe that like the first amendment, the fourth amendment protects some necessary rights even if those rights lead to objectionable or even offensive things.

With that being said, this post sets out to define two baseline Supreme Court cases that have been heard by the Supreme Court. I think the best way to understand Supreme Court cases and constitutional law is to actually look at and try to analyze the court cases. I believe it gives you a much deeper understanding of the law. I’m a firm believer that hearing two sides or more of an argument can be helpful in educating a person on any given subject. This post and others like it, are for me a test of my own knowledge. Like I said before I had only one class of constitutional law. I never took criminal justice or law classes. However, I do have a pretty good understanding because I have self-educated on this subject. Rare I know. So I’d like to present the two cases of Mapp vs. Ohio and Weeks vs. United States.

I want to start with Weeks vs. the United States which handed their decision in 1914. The Weeks case holds origin of the Exclusionary Rule which I will explain after this. In this case, the Court had to decide this basic question about the fourth amendment: What use can be made of evidence gained in an illegal search? This was one of many questions but it is the most important. The Court was seeking to use the fourth amendment as protection. This case was about a man who was arrested and brought to trial on evidence obtained illegally. You can read all the background here. The Court decided that Weeks who had his office and home searched without a warrant was unfairly tried. The Court overturned Weeks’ case because of the evidence was gained by illegal which means obtain without a warrant.

The most important opinion from the Weeks v. United States is one delivered by Justice Day who writes that “illegally gained evidence “fruit of the poison tree” and ordered that illegally gained evidence be excluded in the future from any federal court.” The court decided unanimously to overturned the case and establish an important constitutional law called the Exclusionary Rule. The Exclusionary rule as set by the Week’s case says that in federal court, any evidence obtained without a warrant is inadimissible in court. The Exclusionary Rule protects people from illegal searches. This is exactly what the court set out to do. The Supreme Court wasn’t done with the Exclusionary as some years later another case came along called Mapp vs. Ohio. The Mapp case would expand the rule even further.

The Mapp vs. Ohio came to the Supreme Court in 1961. It was a decision that cited Weeks vs. United States as a precedent. It also expanded the Exclusionary Rule to the state courts as well as the federal courts. You can read the background of the case right here. The court decided in a 5-4 vote that the evidence against Mapp was obtained illegally or without a warrant. It was a different set of cirumstances than Weeks however, it applied to the same constitutional fourth amendment rights. Justice Clark gave this conclusion near the end of his opinion. It will sum up the case in better terms than I could put it myself.

Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.

I believe that the fourth amendment is even important today. I know that these cases are now very old. The Weeks vs. United States case was decided over 100 years ago. The Mapp vs. Ohio case was decided nearly 55 years ago. But I think that Court need to make a general rule especially considering the ever expanding technology boom. The Exclusionary Rule will protect people from being tried on illegally obtain evidence. I think that alone ensures a fair trial. Not to mention all the other rights that guarentee a fair trial.

Of course, unless you have committed a crime there’s not much applicable to this amendment. However, I do find interesting with the NSA and the spying on everyday citizens. One has to think that some day there will be case filled against the federal government for spying and violating the fourth amendment. That isn’t say that it won’t happen  but I believe there probably are few cases making their way. It would be ground breaking if the court ruled on a decision that made the government’s spying on people without a warrant or reason illegal. I don’t know of any cases of people actually being tried for potential crimes based on the NSA spying. But I imagine one of the defenses would be the fourth amendment.

To wrap up this blog post, I just want to say that its important to know your constitutional rights because you never know when you might need them. This is also part of the reason why I write about them. I realize its not the most exhilrating subject. I hope you enjoyed this, there will definitely be more coming soon!

Thank You!

Flag Burning: A Burning First Amendment Controversy.

If you haven’t heard already, President-Elect Donald Trump wants to make flag burning a crime. A federal crime. In case you were born yesterday, this is not a new or radical position to hold. Although flag burning is highly disrespectful and controversial, it is protected by the first amendment. The freedom of speech has been interpreted in many ways since the original amendment was written. I wanted to weigh in on the controversy or as I’d like to characterize it a non-story. Before I get into why I think flag burning shouldn’t be penalized, I want to explain in some depth analysis about how the Supreme Court came down on flag burning. If you don’t know already, I’m a huge nerd and love looking at policies and politics. One of my absolute favorite branches of government is the Judiciary branch.

If someone told me I could be whatever I wanted for the rest of my life, I think a Supreme Court Justice or Constitutional lawyer would be in the top 3, right along side NFL Quarterback and Historian. The fact is I love the constitution and its intricacies and I’ve studied many of the men who wrote it. I think the document is a testament to the human experiment. The constitution is ageless, timeless and perfectly logical. The language is quite simply genius. The beauty of our constitution is that it can interpreted many different ways and that allows the US to have flexibility like no other nation before us. I honestly believe that most people don’t truly understand the constitution. The truth is that what they teach you in elementary school up to highschool is all true. The constitution sets up the rules and rolls of the government. The Bill of Rights is much deeper than just guaranteed rights by nature but it’s how the actual laws of this country are defined.

All of this introduction to say that the first amendment was written to protect many different types of speech. I took a constitution law class in college. One of my hardest and most favorite classes of all time. I really got my affinity for the constitution during the class. However, the class required me to memorize approximately 20 to 30 supreme courts cases on a few different topics. I had to know the facts, the reasoning, the ruling , the dissent and sometimes the precedents. So before we can discuss the case of flag burning, we should probably read over the first amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 

For this particular case, Texas vs. Johnson, we want to focus on “abridging the freedom of speech”.  The freedom of speech is pretty vague phrase which is why flag burning is protected. If you want to read about the whole case, I would recommend doing that here. I won’t be going over the ‘facts’ because it’s not that important other than to say that quite a few states tried to pass laws to make flag burning a crime. Those states, specifically Texas tried to prosecute someone named Gregory Lee Johnson for burning a flag. Now the court decided that the issue with the flag burning was whether or not its protected by symbolic speech. In order to understand the phrase ‘symbolic speech’ in a constitutional meaning, you have to know two other supreme court cases. In other words, the court cited two precedent.

In Stromberg vs. California, this was case where the court decided that California could not ban red flags. It was unconstitutional because it was protected by symbolic speech and due process (a 14th amendment right). It was a landmark case because it gave symbolic speech the protection of due process. Which if you missed that in history class, due process protects the denial of life, liberty or property by the government, outside the sanction of the law. In other words, the government has to have a legitimate reason to pass a law that is vague or unfair.  The second precedent which I believe is slightly more relevant and well-known is Tinker vs. the Des Moines Independence Community School. In this case, the court voted 7-2 in favor of kids wearing black armbands to school as symbolic speech. It is the most cited and often best supported argument for symbolic speech. The students were voicing their opposition to the Vietnam war with the black armbands and the court justified this as their right because “students and teachers don’t shed their rights to freedom and expression at the schoolhouse gates.” This is how symbolic speech has been defined in the past. If you read the actual briefs, the judges cite many cases but these two clearly show how symbolic speech is protected especially as pertains to flag burning.

In Texas vs. Johnson, the Supreme Court handed down a ruling of 5-4. The Majority opinion was written by Justice William Brennan. The dissenting opinion written by Justice Stevens. The court ruled that flag burning was in fact protected by symbolic speech. Why? The court decided that the Texas law used viewpoint to try to justify the ban of flag burning. Court said that viewpoint wasn’t justifiable objection alone. However, it did exempt flag burning to get rid of an old flag. They also said that the offensiveness of flag burning is notwithstanding in a law to ban it. Now to me, this might bring up the another constitutional issue of obscenity, however, I’ll leave that for a different post.

The dissenting opinion by Justice Stevens was that flag burning should be ban because of the flags unique symbolization of the unity of America. Justice Steven was suggesting that national unity outweight symbolic speech and free speech. Whether you agree or disagree with either opinion, I think there is a fundamental problem with Justice Stevens argument. I believe from what I’ve heard that Donald Trump pretty much has the same line of reasoning. The fundamental problem is that suspending freedom of speech or symbolic speech in just one instance, could lead to future expansions of that suspension. What I mean is that if flag burning becomes illegal because it’s a symbol of unity, then eventually that might turn to censorship of the press, the quelling of protests, and the silencing of the people. This flies directly in the face of the first amendment, which says prohibiting the free exercise thereof; or abridging the freedom speech.

So I believe the court got this right the first time. Now you ask the question, what does that say about your loyalty to the American Flag and the country itself if you support flag burning? Well, the answer is easy. I am a loyal American who votes and participates in our wonderful republican democracy. I do not support flag burning. I think it’s really disrespectful because our troops have fought for that flag. They have given up everything for that flag to wave in the air. They died for that flag and our country. My grandfather was enlisted in the military during World War 2. He served his country and help make the flag a symbol for peace, liberty and unity. What I do support is anybody’s right to burn the flag in protest or anger or hate or honor. It doesn’t matter the viewpoint of why your burning it. The fact is not everyone will agree with your decision. There is no way to possibly legislate a viewpoint. Its an opinion, not a fact. Therefore I believe that Justice Brennan and the Majority opinion was the correct one. Justice Stevens dissent is fundamentally flawed.

I hope that you found this to be somewhat educational and interesting. I didn’t want to bore out every single detail. I’m also hoping to do more this type of post. Constitutional law is fun to me and its interesting, challenging and tedious. I think its a very cognitive thought producing process that can really expand your argumentative skills and make you consider the simplest facets of life and how they are related to the government. What people say that politics doesn’t interest them, I wish I had the time and attention to explain them that it matters deeply to every individual. The constitution protects our freedoms which allows many people to ignore the fact that politics is in everybody interests especially in democracy. Trust me, the founding fathers experience a government that was unresponsive and didn’t allow them representation. They fought a war to govern themselves. The beauty of the revolution was the ability to participate in your own governing.

Thank you for reading!

On the Basis of Democracy: John Locke, Part 2.

Welcome to Part 2 of on the Basis of Democracy with John Locke. If you missed Part 1, you should read that first. The purpose of this blog post is to simply figured out the origins of Democracy and how it works within our American democracy. In Part 1, I went over some of the ideas of democracy from Aristotle. Political theory is a pretty easy theory to follow because each political philosopher usually builds off philosopher’s of time past. Therefore, the more ancient political scholarship you understand, the more modern/current political thoughts you can understand. In Part 2, we will be discussing John Locke and his ideas on democracy.

Who is John Locke? He is an english born political philosopher. Born in the early 1600s. He was influenced by Aristotle. Locke has a deep range of writings. He is often considered to be one of the fathers of the enlightenment. Similar to part 1, I won’t give a full biography but go to straight to Locke’s ideas about democracy. Starting from his first writing and going forward, Locke’s main premise is the consent of the governed. In his first writing called “Fundamental Constitutions of Carolina”.  In this piece, Locke and his mentor, wrote a constitution meant for the Providence of Carolina in England. It was never adopted. However, the ideas that he mentioned became the basis of political philosophy going forward.

The most influential of Locke’s writings came in his Two Treatises of Government. Instead of trying to paraphrase his great words, I will just show you. Then I will explain how the founding fathers use Locke’s ideas especially in the Declaration of Independence. Here is just a few excerpts of Locke’s Two Treatises of Government:

Sect. 95. MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.

Sect. 96. For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority: for that which acts any community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be concluded by the majority. And therefore we see, that in assemblies, impowered to act by positive laws, where no number is set by that positive law which impowers them, the act of the majority passes for the act of the whole, and of course determines, as having, by the law of nature and reason, the power of the whole.

If you want to read more of Locke: Click here.

Locke’s main point is that the governed hold the power of the government. Locke believes that a government cannot operate without the consent of the government. This is a basis of democracy. The reason why Locke believes that the consent of the governed is so important is because of the freedom or liberty that it offers. If the government is ruled by the people it can prevent tyrants and better rule the people. Locke is also coming from a monarchy in England and in a time when the dark ages we’re not that far off. In the dark ages, it was a small oligarchy who wealthy that ruled over the poor and working class who had no say. Locke’s ideas are perhaps best expressed in Thomas Jefferson’s document.

Thomas Jefferson was a philosopher in his own right. Jefferson also understood that Locke’s philosophy fit perfectly with the American cause for revolution. If you didn’t pay attention in history class then you want to know to that one of the rallying cries was “no taxation no representation”. The American people were clamoring for representation in the British parliament. The unilateral rule of the British Monarchy over the American colony was directly what John Locke was trying to get at. In the Declaration of Independence, Thomas Jefferson took a page for Locke and wrote this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Thomas Jefferson essentially took Locke’s words and used it as a justification for the revolution of the American people. Locke’s vision for democracy did not just end with Jefferson but kept going. Locke’s idea that the consent of governed is needed in democracy still holds true today. Unfortunately, in today’s America we have gotten lazy. We seem to have ignored the fact that our democracy is supposed represent the people. Many people blame our representatives. We should look at the majority of governed who don’t vote. I think in a very indirect way, Locke is also advocating for participation in government. I feel that political participation has gone down as politics has become more polarizing.

We can blame Trump. We can blame Hillary. We blame our politicans. However, I think that democracy in the words of Locke lies with “the consent of the governed.” I think to wrap up this series, I want to just conclude a few major considerations for the basis of democracy. One basis that Aristotle outlined is the authority over aduits. In other words, Aristotle thought that the people should hold purse strings and keep the government accountable. Aristotle gave us a second basis that is the foundation of our judicial system. The right to a fair trial with a jury of your peers. Locke gives us the basis of the consent of the governed. The theory that democracy should always be run by the people and for the people. The majority of people should have the power to control the government. This means everyone must vote. Everyone must participate. These are the three main bases of democracy as written by Aristotle and John Locke.

This will be end of this series for now. I may continue it with different philosophers at another time. Below you will find my sources especially for the quoted stuff. Thank you for reading!

Citations:

https://www.johnlocke.org/about-john-locke/who-is-john-locke/

http://www.gutenberg.org/files/7370/7370-h/7370-h.htm

http://www.ushistory.org/declaration/document/

 

 

 

On the Basis of Democracy: Aristotle Part 1

I am so happy to be writing again. I took nearly a month off because the election just made me really want to stay out of politics. It was so demoralizing and embarrassing. Just glad that it’s over. Now with the election over and the reaction starting to cool down, I want to swing my blog into more a history based content. My true passion is history. This specific blog post is going to analyze some of the classic political writings and philosophers. Don’t worry I won’t bore you to death with just some biographies. I want to present a logical argument for a representative democracy. My last post touched on this with Alexander Hamilton writing the 68th Federalist paper. Just to recap, Hamilton presents an argument for the Electoral college that says that a small group of people who have the ability to make a decision is better than having it rest just on the everyday person. Hamilton argues that its crops out the corruption and makes sense when trying to determine who should be elected. Hamilton’s brilliant argument became my own in my defense of the Electoral college. I want to build on the representative nature of the Electoral college that makes our democracy so unique.

I want to introduce two figures of political history. One is an ancient greek and the other an Englishmen from the 17th century. Hamilton was so well versed in all political philosophers. It shows in his Federalist paper 68. I think that its important to know about where the founding fathers got their inspiration and at times their whole concept. Many people who I know and meet, are understandably ignorant on political philosophy. Unless you are a political fanatic or you love philosophy then you probably don’t know much about these two figures. For the sake of this blog post, I want present some of the most relevant theories of Aristotle and John Locke that regard democracy.

Democracy is synonymous with America. Democracy in latin means commoner. Democracy is associated with freedom. Democracy is in the words of Thomas Jefferson: ‘We the People of the United States, in order to form a more perfect union’. (If you didn’t know, the preamble of the constitution starts like that) The question or argument that I will be presenting is simply what is the basis for a democracy? Why is Democracy such a successful system of government? These are just some of the questions that may or may not be answered because I don’t believe there is just one answer. History is not an exact science when it comes to the ‘Why’. (Also known as the five W’s: What, When, Where, Who and Why. A simple way to remember how to think about a historical topic)

Aristotle was greek philosopher and lived from 384 to 322 BCE. He wrote on hundreds of different topics ranging from family life to science to politics. One of his political writings is on democracy. First, you have to realize that Aristotle was a student of Plato who had a more utopian view of society. Aristotle was the first realist. He thought that the political community was the top of society. The political community is responsible for the education, health and governance of the rest. In his writings on the best democracy he lays out a few main points. One of these points about political community being a guide: “that human life has a telos and that the political community should provide education and laws that will lead to people pursuing and achieving this telos. Given that this is the case, a regime that allows people to do whatever they want is in fact flawed, for it is not guiding them in the direction of the good life.”  This is just a summary but in simpler terms, Aristotle believes that everyone has a spirit of good in them. This spirit of good needs to guided by the political community aka the democratic government to reach what he calls the good life or happy life.

Similar to Plato, who also believed that there was level of happiness that could be achieved that was above anything in the human experience. However unlike Plato, Aristotle believed that the best democracy was made up of farmers. His reasoning is that farmers or herders are less likely to assemble and own less land.  They offer a democracy the least path of resistance. You might conclude that some of the success of American democracy can be credited with large farming industry starting before and going well after the revolution. Aristotle thinks that a democracy made up of farmers and ruled by “This is a reason why the authoritative offices can be in the hands of the wealthy, as long as the people retain control of auditing and adjudication: “Those who govern themselves in this way must necessarily be finely governed. The offices will always be in the hands of the best persons, the people being willing and not envious of the respectable, while the arrangement is satisfactory for the respectable and notable. These will not be ruled by others who are their inferiors, and they will rule justly by the fact that others have authority over the audits” .  For the purpose of this argument, I think that Aristotle makes an interesting point with  words that I underlined. Let me explain.

What Aristotle means by authority over the audits is that the people must retain control of the budgets of public spending and they should be liable to be persecuted if there is wrongdoing. Aristotle considers adjudication as a right to fair trial by being judged by your peers. I find it so interesting that in ancient greek times, Aristotle is basically laying some constitutional principles that our founding fathers definitely included in our democracy. I also feel that politicians being liable to persecution is not met across the board with all public officials. I think that sometimes politicians are protected for personal gain and to avoid political suicide. Politics is literally a house of cards, because politicians depend on each other more than they let on.

I think Aristotle remains one of the most amazing and interesting philosophers. These writings occurred well over 2000 years ago. It makes you think about just how smart the Greeks were. Let me be honest though, the Greeks did not make the perfect government by any means. Their democracy in Athens was a true democracy with a senate. The voting took place with only land owning men. The politics were corrupt and dirty. There were demagogues that rose up and messed up their elections. However, the greeks set the stage for the Roman Empire which lasted 8 centuries and used a form of democracy for some of that time.

One of things I love about Aristotle is that he is a realist. His perspective mirrors my own in that the most capable people should be in a position to run the government. However, their power should not go unchecked. In a very indirect way, Aristotle is advocating for checks and balances,  the part where he says: “authoritative offices can be in the hands of the wealthy, as long as the people retain control of auditing and adjudication:” . The people need to be in control of the government. I believe this is a problem in our American democracy. We don’t hold the government accountable for anything. When it comes to spending our money or making foreign policy decisions.

To wrap this post up, I want to say in Aristotle’s view of democracy he had envision a simple concept where by the political community and the wealthy educate and govern the farmers and herders. However, the farmers and other common folk hold the purse strings and judge their peers. Aristotle contemplates a fair system of democracy that I believe gave us the foundation to America. America started out as farming settlement in North America. The wealthy men of the settlement decide to wage a revolution and break free from Britain over a variety of reasons including taxes. The ruling class has always been primarily wealthy. However, the biggest change is the modernization of farming which has led to its decline. This is the challenge to our future democracy.

Stay Tuned within a week for Part 2 on John Locke. Thank you for reading! Have a great day!

Citation text: Internet Encyclopedia of Philosophy