Kavanaugh and the Supreme Court

I am very excited about this post, it is the first guest writer for Historically Speaking and is an excellent addition to this site.

The recent Brett Kavanaugh appointment has led many to believe that it is just a matter of time before we see a reversal of rulings in cases. Many people look upon Supreme Court appointments as representative’s votes to the conservative or liberal agenda. But, historically speaking, things are never what they seem to be with the Supreme Court.

The court has a long history of doing things not expected; much like Lord Coke, as Chief Justice of the King’s Court, inserted an unparalleled act of judicial activism by asserting the King subject to common law in England in the 1600s.  Chief Justice John Marshall seized the opportunity to define the Supreme Court when, in Marbury v. Madison the court declared an act of Congress unconstitutional: “It is emphatically the province and duty of the Judicial Department to say what the law is.” Marshall looked back to the courage of Coke and relied upon the reasoning from Coke’s decision in “Dr. Bonham’s case” for the legal argument of interpretation by the courts in the Marbury case. Thus, we see how courts continually rely on previous decisions and logic to address current issues. A principle we will discuss later.

            The expectation is that with the appointment of a conservative judge there will be a wave of rulings to the contentment of the conservative movement in the country. While the court does have a history of tilting to the left or the right at certain times, it is unwise to put any real reliance into individual justices. Harry Blackmun, who famously wrote the Roe v. Wade decision, was appointed by Richard Nixon. Blackmun was a conservative and friend of conservative Chief Justice Warren Burger. Their conservative votes in the early years gave them the nickname, “the Minnesota twins.” But as his career advanced Blackmun became increasing liberal. By the end of his career he voted 90% of the time with the liberal end of the bench. Ever self-effacing, as a supreme court justice he used to drive his Volkswagen Beetle through fast food joints telling the workers, “I’m Harry. I work for the government.” Sadly, his change in voting patterns made him estranged from Burger.

            Even while maintaining a certain judicial philosophy, justices may vote on issues that depart from their usual positions. Sandra Day O’Connor was a conservative justice from Arizona who voted with conservative Chief Justice William Rehnquist in nearly all her early votes. Later, she developed into a swing vote on the court, but still voted with the conservative side of the bench two-thirds of the time. O’Connor’s early voting pattern with her opinions criticized and limited Roe v. Wade; but by 1992, she wrote there was a 14th amendment due process right to abortion in Planned Parenthood v. Casey. O’Connor maintained her conservative view through her judicial career, but consistently voted to uphold Roe v. Wade.  Even though considered, at one time, the most powerful woman in the world, she maintained retired active status and served as a judge on several federal circuits when there was a shortage, as well as, campaigning for judicial independence.

Even Antonin Scalia, the quintessential conservative, could be drawn to voting for liberal issues.  In Texas v. Johnson, Scalia joined the liberals in voting 5-4 to declare the Texas flag burning statute unconstitutional.  Scalia, effusively expressive with this command of the English language, loved great arguments and debates over Italian food with family and friends. He shared a passion for opera with Ruth Bader Ginsberg. He took Justice Kagan big game hunting.  Despite ferocious arguments over the law, he was able to maintain close relationships with his colleagues. It’s a lesson we could all learn.

            This lack of consistency often perplexes the media and public who look at justices in simplistic categories such as liberal and conservative. Each one of them is driven by certain touchpoints developed from their practice of law. Secondly, but equally important, they give deference to stare decisis, that is, looking at prior decisions of Anglo-American law that have developed for nearly a millennium for guidance. The Supreme Court looks at itself as an institution and one of the foundations of the republic. Unlike what you heard in 6th grade civics, the Supreme Court makes law just as the courts have in the English system we inherited. The common law, a term so well-known, is judge-made law. As such, each new member gives great deference to the logic and decisions provided by previous courts. Reversing themselves upon the whims of public opinions is simply not in their institutional DNA. Consider the pro-slavery 1857 Dred Scott decision denying African-Americans citizenship, it took a civil war and a constitutional amendment to change the decision. Interestingly the Supreme Court has never expressly overturned Dred Scott in subsequent decisions on the issue.

Today, we can see some change as conservative Chief Justice Roberts voting with the liberals.  These votes may be a hint showing the Chief Justice will guide the court in a direction allowing limitations of controversial cases like Roe v. Wade, but not overturning it much to the chagrin of partisans on each side of the abortion issue. Thus, we see a function of the court as protecting the constitutional boundaries, but leaving the profound, fundamental changes to the political arena. To overturn Roe v. Wade, the watershed Supreme Court decision of this generation, stare decisis and the great deference to the opinions cited in the decision must be overcome. It will likely take a constitutional amendment to overturn Roe v. Wade.

George Burnett received his B.S. from Oklahoma State University in 1981 in Animal Science.  He then later graduated from the Oklahoma City University Law School in 1987.  Burnett worked as an Assistant District Attorney for Oklahoma, Blaine, Garvin, and McClain Counties for 25 years.  As a felony lawyer he tried thousands of cases, everything from shoplifting to Capital murder cases.  He completed his career as Assistant Attorney General for the State of Oklahoma. Follow Historically Speaking at http://www.Historicallyspeaking.blog or Facebook at @jamesWfinck.

Religious Intolerance


Religious Intolerance
With the shooting of Muslims at prayer in New Zealand and reports of violence towards Christians in foreign lands, there has been a great deal of talk lately about religious tolerance. Depending on the source, religious toleration is either getting better or worse in this nation. Those same sources also claim that America either has freedom of religion, separation of church and state, or is a Christian nation. When looking at the history of religion in America, what becomes clear is that there never really has been too much tolerance and this tradition has continued in many ways to the present. What is most surprising today is where this lack of tolerance comes from.


Before we start any conversation on religion, we need to look at the different parts of the original Constitution that deal with religion or God. It will not take long because there are none. It is commonly believed that our Constitution maintains a separation of church and state, but in fact those words do not exist. After the Constitution was ratified, the First Amendment was added that states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” but that is all–no mention of religion, or God, or the separation thereof.


Next is the commonly held belief that the colonies were founded for religious freedom. This is partly true. Of the thirteen original colonies, five had religious context for their creation; the others mainly were profit-driven. The most famous example of religious freedom is Massachusetts, which was founded by Puritans escaping religious persecution in England. Yet, once established, these Puritans did not practice religious freedom for others. In fact the colonies of Rhode Island and Connecticut were established by Puritan dissenters from Massachusetts evicted for different religious teachings. In other words, there was no religious toleration in the New England area.


After the Revolution, religious intolerance fell on anyone not Christian and, within Christianity, squarely on the Catholic Church. For the vast majority of American history, Catholics have been persecuted. In this democratic, protestant nation, the hierarchy of the Catholic Church was seen as too authoritarian. There was always the question of Catholics ultimate loyalty–was it the nation or the Pope. Catholic immigrants from places like Ireland and southern Europe faced an added uphill battle once arriving in America because of their Catholic beliefs. The 1850s Know-Nothing Party even made anti-Catholicism one of its political planks. Later, in the 1920s there was a resurgence of the KKK in the North, as well as the south. This new nativists Klan put Catholics alongside blacks on its list of undesirables. The best example of this nation’s anti-Catholicism is in choices of presidents. The Catholic Church is the largest denomination in the U.S. by far, yet we have had more Quaker presidents (2) in the 20th Century than Catholic Presidents (1).


After non-Christians and Catholics, 19th century Americans mostly turned their intolerance towards several of the Christian denominations started in the U.S. The century saw the creation of the Seventh Day Adventists, Jehovah’s Witnesses, Christian Scientists, and the Church of Jesus Christ of Latter Day Saints (Mormons). Those were just the new religious movements that stuck. The ones who saw the most opposition were the Latter Day Saints. The LDS were violently driven out of Ohio, Missouri, and finally Illinois. The worst violence occurred in Jackson County Missouri, where Mormons were dragged from their homes and beaten while their property was destroyed. Their leaders were jailed and tortured, while those left behind were beaten, raped, and eventually murdered. All because they believed differently. Finally, the Governor of Missouri passed an ordinance that all Mormons were to be driven from the state, forcefully, if necessary. The Mormons made an appeal to the President but were told he needed the vote of Missouri too much to help. Finally, in Illinois, the Mormon prophet, Joseph Smith, was arrested for disturbing the peace and, while the sheriff turned his back, a mob stormed the jail, killing him and his brother. Following the death of Smith, the only place the Latter Day Saints could find any peace was in Utah, a land no one else wanted.


Politically, the six major American-created Christian denominations have produced only two American Presidents, both from the Campbellite Churches of Christ movement. What is most interesting about religious intolerance today is that it is the last socially acceptable form of intolerance. A good contemporary example comes from one of my favorite shows, “The Simpsons”. Recently the show has decided to remove the popular character of Abu because he was seen as culturally insensitive. Yet there has never been outcries for removing the character of Ned Flanders (stupid Flanders), who can be seen as an insulting caricature of a crazy Christian. Hollywood is full of such examples. It is positive that you can no longer mock race, gender, nationality, or, in the case of religion, Jews or Muslims, yet we still do not criticize mocking all religions.


What is also interesting is that the same religions attacked in the 19th century are still attacked today. Even more curious is that the attacks come both from those who are against religion but also from within Christianity itself. I have been teaching students about early American intolerance against Catholics for years, yet for most of my life had felt it a thing of the past. That was until I moved to my current home. To my surprise, I have had Christian students make anti-Catholic statements, most frequently along the lines that Catholics are not Christians, which is interesting considering for several centuries Catholics were the only Christians. I even had a lady once tell me that she did not mind if her son joined a religious Boy Scout troop, as long as it was not Catholic.


Even more surprising is that some of the most intolerant are the ones who often call for tolerance. The Broadway community not only accepted intolerance. They gave it a Tony Award in 2011 when it awarded “The Book of Mormon” Best Musical. The show, which still draws large crowds, including many Christians, mocks belief in God in general, but specifically LDS believers. Granted, the Broadway community has always felt under attack from religious groups and may be justified for their acceptance of this play, yet it still seems wrong.


What we see is that religious intolerance has always been part of the American experience, and that is without even investigating the non-Christian religions. We also see that intolerance is not only of others outside your personal belief system, but from within as well. Yet what we can learn from history is that in so many areas we are doing better. There is no reason we cannot hope we can do better here as well.


Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at http://www.Historicallyspeaking.blog or Facebook at @jamesWfinck.

Immigration

With the border wall becoming the Holy Grail for the Trump administration, there has been much debate about immigration in the United States. As before, I am not writing about modern immigration policy, but I want to comment on the often repeated phrase that America has always been open to immigrants and so what Trump is doing is un-American. Yes, America is a nation of immigrants, but that does not mean they were always welcomed. This piece is not meant to condone or condemn current immigration policy, only to clear up any misconceptions and give the historical truth.

In the nation’s first century, immigration was open and encouraged, not for any high multicultural ideals, but as human capital to increase American’s growing industrialization. But even then, not everyone was happy about the open immigration policy. Between the fall of the Whig Party and the creation of the Republicans in the 1840s and 1850s, one of the largest political parties in the nation was the American Party, better known as the Know-Nothing Party, which opposed immigration, especially from Catholics. The party received its name because it started as a secret society and, when asked about their organization, said, “I know nothing.” 

Congress got involved in restricting immigration in 1882, with the passage of the Chinese Exclusion Act.  Chinese labor was replaced by Japanese and other Asian workers until 1917, when Congress passed the Immigration Act of 1917, barring all Asians from entering the country. The Act also prevented Asians from obtaining citizenship. The 1917 Act officially banned the Japanese, but in 1907 President Teddy Roosevelt had already practically banned many Japanese with an executive order restricting any immigration from Hawaii. Yes, Obama and Trump were not the first to use executive orders for immigration. 

The 1917 Act was the most restrictive act to date. On top of preventing Asian immigrants, it also created literacy requirements as a way of excluding those from less educated areas of Eastern and Southern Europe. Lastly, it gave a list of those deemed undesirable, including criminals, diseased, and anarchists. It may seem natural to restrict categories like criminals, but surprisingly we had not been doing it before. The change by 1917 was that the nation no longer needed as many immigrants. Technological advances were more important than human capital. Henry Ford and the assembly line made it so we did not need as many workers. 

By 1924, the passage of the Johnson-Reed Immigration Act brought even more restrictive measures. Johnson-Reed established numerical limits on immigration based on race and nationality. It then ranked the immigrants based on desirability. The quota system was based on national and ethnic origins of those already in America and deemed that immigrants from those areas would better integrate into American culture. So countries like Great Britain received a quota of 65,721 and Germany 25,957 based on the census, while most nations received only 100 possible immigrants. However, while the 1924 Act allowed nations like China and Japan 100 each, Asians were not allowed citizenship so were denied entrance. 

With new immigration restrictions, the idea of illegal aliens was born, which gave rise to new deportation laws. Many critics felt that deportation laws were immoral, especially when it separated families. As I have said in previous columns, I am not condoning separating families, only that this is an argument that goes as far back as the 1920s.It did not start with the Trump presidency. 

Interestingly, not all nations fell under quota restrictions, including, most notably, Mexico and the Philippines. The 1924 Act did give quotas to countries in North America, meaning Mexicans were exempt. Many Mexicans already lived in the U.S. and under the Treaty of Guadalupe Hidalgo, which ended the Mexican-American War, conquered Mexicans were given citizenship. Also under the 1924 Act, Mexicans were excluded from immigration based on race because they were officially considered white at the time. However, the real reason for Mexican immigration was that American farmers needed laborers.

As for Filipinos, they were colonial subjects and so were also exempt from immigration restrictions. Americans justified colonizing the Philippines as a part of Manifest Destiny. We thought we could give them a better life if they copied us, but changed our tune when they immigrated to the U.S. and demanded better wages and danced with our women.

Mexican labor proved much more acceptable, with the idea that most would return home after growing seasons. It was not until the depression, when jobs became scarce, that problems arose between whites and Mexicans. With growing resentment, whites created labor contracts with Mexicans, called bracero programs, as well as Jim Crow type restrictions. 

Immigration arguments are as old as America. The John Adams’ administration saw restrictions in citizenship. When we needed the labor, we have always been open to immigration, but shut it down when it was seen as taking jobs from Americans. The arguments we are hearing now are not new, but immigrants are being used in our current political climate as political pawns. As always the answer is studying the past to see what has worked or not and then to make arguments about immigration, but being sure to make them accurately. 

Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at www.Historicallyspeaking.blog or Facebook at @jamesWfinck.