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Leslie Feinberg Remembered

I read Stone Butch Blues years ago just after it came out. A friend of mine told me that I had to; it had affected her so strongly that she had been ill for ten days after reading it. I was a graduate student with no free time to read; I read the book: reread it, and cried both times. Then I recommended it to every TBLG person I knew, or met, and gave away at least a fifteen copies to straight people where I thought it could do some good. One of my friends told me that she read the book from cover to cover at one sitting, only getting up to pee. I visited Firebrand books, the original publisher, to try to order in bulk and arrange to use a chapter in my English classes at Indiana University. I am glad to see that the new edition will be available free online, not because I begrudge Leslie, or her family, well-deserved royalties, but because, in the past, the book has been hard to get and needlessly expensive, at least to my way of thinking. It is an important work that deserves wide distribution and recognition.

I got to meet Leslie when she spoke at DePauw University in 1998; they engaged her to speak to their students for their Diversity Week, and mandated that the students attend. The students were present and polite, but not really engaged and the question period was soon at an end. A book signing had been scheduled to follow, but the only person to attend was me. As a result, I got to talk to Leslie for at least twenty minutes. She presented as one of the most male presences I have met, wearing a man’s suit that I describe as “sharp” because it looked good on her, but more because I believe that you could have cut yourself on the creases. The suit seemed large on her, not ill-fitting, but as though she was protected inside it, as if she were wearing a suit of armor. Her comfortable shoes contrasted with the rest of her attire.

Reading Stone Butch Blues, I had been struck by the remarkable care she displayed in using pronouns throughout; I was just getting launched in the TBLG community, and knew almost nothing about gender variance; I do not believe that I attached the label “trans” in my mind to any of the characters in the novel. Along with the care in assigning pronouns: each character had a pronoun that fit the person, not the body, and such decisions were highly nuanced, not simplistic, I read a lesson to let people be who they are, without burdening them with a label not of their own choosing, and the difficulty that allowing them this dignity can involve. I believe that lesson was very important and has helped me ever since.

In my conversation with her, I mentioned my admiration for her skill with pronouns, and she expressed gratitude, noting that she had expended enormous effort on them, and was glad to see that it had been recognized. It is my belief that such effort is often rewarded even by those who do not recognize why they are so enthralled by a work.

I hesitate to question Minnie Bruce Pratt, Leslie’s spouse, but when she quotes Leslie in her lovely, caring, obituary: “I care which pronoun is used, but people have been disrespectful to me with the wrong pronoun and respectful with the right one. It matters whether someone is using the pronoun as a bigot, or if they are trying to demonstrate respect.” The language persuades me that she has erred, probably in the emotion of the moment. I believe that what Leslie said was rather: “I care which pronoun is used, but people have been disrespectful to me with the right pronoun and respectful with the wrong one. It matters whether someone is using the pronoun as a bigot, or if they are trying to demonstrate respect.”

Because I never saw Leslie using male pronouns for herself, I have persisted in using “she” and “her”, always a little worried that it would not be what she wanted. I am somewhat relieved to see that is what Minnie Bruce called her in her obituary, but even more so to have confirmed my sense that she would have cared more about the effort, and the care, than about the details of the final result even though the details mattered so much to her. I feel that Stone Butch Blues and other writings by Leslie Feinberg constituted a graduate course in the use of pronouns and respect for individuality that was of great benefit to me as I learned to honor people as they wished to be recognized.

In Transgender Warriors, she exposed the slight of hand that makes gender variant persons disappear when they can be classified in some other way. The example that struck home to me was Joan of Arc (who among other achievements invented the modern nation state). I knew for as long as I can remember that Joan was burned at the stake for refusing to wear a dress (yes, there were political influences, but they only served to ensure that the charge was brought and the penalty enforced). Until Leslie pointed it out to me, I did not make the connection in a meaningful way that Joan was trans; she was a warrior, a saint, a visionary, but those qualities did not accrue to the transperson, they overshadowed, erased the trans identity.

Leslie was a Communist. I disagree heartily with her politics, but still admire the person and the writer.

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What happened while we were not paying attention: the language in the Indianapolis Human Rights Ordinance that prohibits discrimination on the basis of sexual orientation and gender identity is now enforceable

It is my pleasure to announce to the community that the language in the Indianapolis Human Rights Ordinance that prohibits discrimination on the basis of sexual orientation and gender identity is now enforceable, exactly as is the language prohibiting discrimination on the basis of sex or race. Let me explain:

In 2005, led by City/County Councilors Jackie Nytes and Scott Keller, the council adopted an amendment to the Human Rights Ordinance adding discrimination based on sexual orientation or gender identity to the list of prohibited motives. This action was the conclusion of a year-long campaign involving every group in the LGBT community and many from outside. The degree of cooperation was remarkable and the determination to keep the campaign inclusive, of gender identity, inspiring. Bil Browning headed the coordinating committee and deserves credit for pursuing inclusion in both the campaign and the ordinance, although the community never wavered in its determination to keep the proposed ordinance inclusive of gender identity.

The one blemish on the victory was the prevalent opinion that, because of an interpretation of “home rule” in Indiana, the new addition could not have the force of law, could not be enforced by a law suit. And there the matter has remained for the past years. The promised chaos did not materialize. In that time, there has been no test of the ordinance, nor of the interpretation, but inclusiveness has been the expectation in Indianapolis, and in other jurisdictions in Indiana that have adopted similar ordinances. Property managers, human resources officers, real estate brokers and many other professions are told, when they receive training, that sexual orientation and gender identity are not acceptable grounds for discrimination, in employment or housing, in our city.

And then, in the last legislative session, the Indiana General Assembly adopted a bill that purported to prevent, for example, the city of Bloomington, from adopting a minimum wage higher than that adopted by the state. Many people objected on that basis, but the bill passed and was on its way to becoming law, when the mayor of Indianapolis complained that the wording of that bill would remove protection against discrimination on the grounds of sexual orientation and gender identity from his city’s Human Rights Ordinance. As we have seen, there was some serious doubt that such protection was enforceable, but that did not come up in the public discussion at that time.

Human rights activists, Democrats and others of my acquaintance exploded claiming that the original bill was merely a ploy to remove any semblance of LGBT rights from the state. As we shall see, if that was the case, the perpetrators are singularly inept. The passion, I think, blinded the LGBT and Human Rights communities from paying attention to what was going on.

The other thing that happened was that Brian Bosma, Speaker of the House, and David Long, President pro Tem of the Senate, immediately said that such was not the intention, and that they would fix it; immediately. While my friends were pursuing their frenzy, I was interested that the legislative leaders did not say that the issue in question was controversial, but market forces dictated that we cater to the desires of large companies and others who wanted to recruit people to come to Indiana or to retain them. They simply said that it was unintentional, and wrong, and would be fixed.

The other remarkable thing was that they did not say that they would propose some unspecified fix in the next session. They proposed a precise fix, named an existing bill into which they would insert it, so that the fix would be law before the offending bill took effect.

And there it lay, until I got involved in a discussion that brought up the whole problem of the unenforceable ordinance. And I thought: how do you pass a law in the General Assembly that makes a city ordinance unenforceable, but at the same time, not affected by a law that says it cannot be enforced. That the new law would have advertised the weakness of the ordinance would be damage of a sort, but how could the legislature fix that?

The answer is: it could not. So I looked up the language of the fix. It is black and white: on the request of our Republican mayor, the Republican Speaker of the House, and the Republican President Pro Tem of the Senate passed a bill, and the Republican governor signed it into law that clearly and unambiguously empowers the City of Indianapolis and all similarly situated “units” (I think that is the term of art) to add any categories they like to lists of protected categories in their ordinances. Since that law was enacted to save the clause about sexual orientation and gender identity, it surely must include those very categories. In other words, the LGBT inclusive language in the Indianapolis Human Rights Ordinance has exactly the same weight as the language prohibiting discrimination on the basis of sex or race.

I am happy to make this report to the community. I do suspect, and have for a long time, that making gay rights, or anything, a partisan issue tends to make meaningful, enduring progress more, rather than less, difficult. I have maintained for some time that my goal is that equality be a Hoosier value (and I believe that it is) rather than a purely Democrat or Republican value.

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Are the judges of the Fourth Circuit expressing irritation at the Supreme Court?

As we wait for the Supreme Court to answer the Fourth Circuit’s refusal to stay their ruling in Rainey v. Bostic, the Virginia marriage case, I wonder what possessed them to make such a refusal despite the Supreme Court’s two previous rulings granting a stay in similar cases, over the objections of the Tenth Circuit. While we would hope for denial of the requested stay, it is almost automatic in such cases, especially where one has already been granted. It says little, if anything about the merits of the case or the chance of success. So why is the Fourth Circuit seemingly asking to be overturned–judges do not like that.

My own thoughts have been that they wanted to dare the Supreme Court to overrule them with the strong likelihood that the case will be resolved in favor of marriage equality in the very near future, and the stay will have been exposed as unnecessary. Of course, I could be guilty of wishful thinking, but over thirty federal judges, including four circuit court judges agree with me.

A friend, who knows well people who clerked for the judges in this case, offered a slightly different perspective, which I adopt. She said that the “cranky old men” on the Fourth Circuit could be expressing their annoyance with the Justices, for erring in Windsor and making the lives of the circuit court judges needlessly difficult. The error, let me hasten to explain, was not that the Supreme Court decided the case wrongly, but that it did not go far enough.

Before the decision in Windsor came down, I hoped that the court would recognize the chaos that would ensue if they ruled as they eventually did, leaving the larger question of the constitutional right to marry the person of your choice for another day. Obviously this decision led to the many cases claiming the right to marry and to have one’s marriage recognized, but it led to many other subsidiary issues that have surely plagued the court system since then. My imagined example was of a couple who worked, at least one of them, for the federal government in Washington, and could have their employment benefits changed by moving from one block to another (from one state to another). That would lead to unequal treatment of two federal employees, similarly situated, and sitting next to each other at work. There would also be the case of a federal employee assigned from a state that recognized her marriage to one that did not. We know that groups such as Lambda Legal have specialists who advise people on how to navigate this mess. Since I do not spend my time worrying about the difficult lives of federal judges, I did not consider that they might well feel aggrieved in their own right.

And so it seems that they may have done; and sent a message to the Supreme Court, by refusing to stay their decision, thus allowing our friends to marry, but at the same time, allowing them to dismiss pending cases as moot.

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In Memoriam

My sixth-grade teacher fought the boot of Italy as a Tech Sergeant in the Army of the United States during the Second World War. He operated independently, commanding two thirty-caliber machine guns, and two mortars and the men who manned them. He hated war and warned me that I should avoid it at all costs. He said there was nothing noble about it; that at a certain place and time someone had to do the job so that others would not have to later. One of the memories that haunted him was having to submit a requisition to the quartermaster for supplies, e.g. ammunition, rations, and one replacement. The replacement arrived after dark and was assigned to a foxhole, where he was needed to replace a casualty. By morning, he was dead; recruits did not often last very long. The idea of a human life, consigned to a supply list did not let go of my teacher. At night, walking among the foxholes to check on his troops, he could hear the safeties clicking off. He said, somewhat softly: “It is me, and I know where you are.”

His mortar gunner was a pacifist. He had been drafted and went along, but without enthusiasm until the day the telegram arrived about his brother. From that moment on, the gunner was on the phone: “Can I shoot? Can I shoot? I see some Germans, can I shoot?”

“Fire one at a thousand, and one at eight hundred yards, for range!” The rounds landed almost immediately. “Fire six at eight seventy-five, for effect!” All six rounds were in the air before the first one landed.

I never got a narration of the campaign; I got snippets, impressions and never asked questions. I just listened. Some of the conversation occurred years later, filling in details. The overall impression was dark, somber; often at night.

For a time they had a major in command who would not let them relax. There was nothing special about the company; they were civilian soldiers doing what they had to do to get the job done, and to try to survive. But for at least a couple of months they kept trying to move forward without a let up. They captured a German officer from an elite unit and interrogated him before shipping him to the rear. Before the first question, he offered: “Who are you people? Don’t you ever rest?”

Over the months he got to the point that he did not want to know anyone. Most of his friends were gone, and replacements did not last long enough to befriend. He went to a field hospital and found a psychiatrist who listened and said: “Do you see that soldier there?” Pointing to a bed at the end of the ward. “He has just lost his right arm and needs to write a letter home. Go and write it for him.”  After the letter was written, my teacher was assigned to the next bed and so on down the ward. Then he went back to his unit at the front.

He did not sleep. At night he went out across the lines, hunting. At night, across the lines, he could not risk making any noise. In the morning mist, he could hear the safeties clicking off as he came back to our lines. He had to call out to assure them he was friendly.

Once he was captured. He was held for a time, but before they could ship him to the rear, he escaped. There was a knife involved; his captors did not want to let him go. He had nothing more to say on the matter.

One fine day, in the sunshine, they captured a German field hospital. It was clean and bright. The doctors and the nurses wore clean, starched uniforms. The wounded lay in well-made beds. The captors walked silently through the hospital carrying their rifles and submachine guns at the ready. They went out behind the hospital where they found a corral made of long stakes driven into the ground. The corral contained young Italian men. The Germans were using them as a living blood bank, until they were used up. My teacher and his men returned to the hospital and shot everyone there without a word.

He told me that the hardest thing to learn was to walk away from the dead and wounded. If you could not help them; if staying simply meant that you would also be dead or captured, then you had to do what you could for them; give them ammunition, food, water, a cigarette; make them as comfortable as possible, and walk away.

He had a fiancée, a redheaded horseback riding teacher. They had an agreement. If he got home whole in body, they would get married. When he got home, after the job was done, he was whole in body and he called her to make good on the promise. She replied: “I am busy.” Shortly she explained that she was teaching children in a boarding school in the mountains. It was too important; she could not leave. He could join her. He was afraid of children. In Italy, children were desperate to survive. Their desperation scared him. But he had nothing better to do, and a promise to keep. So he went into the mountains.

He was hired as an art teacher. The owner of the school met with him (and each teacher) at least twice a day for a few minutes, giving him practical advice on how to interact with children who were not as desperate as those he was used to. Slowly he recovered his humanity, thanks to the mountains, and the children. After a few weeks it was his turn to supervise Saturday morning activities. He still was unsure of how to act with children, especially without the structure of his classroom. The head of the school told him that his job was to know “where they were, in every sense of the word, and stay out of their way.”

For the rest of his life, every couple of years, he would find a good psychiatrist and wrestle with his memories. He was a most remarkable teacher of young children and made many young lives better by being in them. Although he became prominent in an international organization, he never agreed to go to Germany.

He died after a long life, not in battle, but still living the aftermath of combat.

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Justice Ginsburg’s mistake: why Roe v. Wade is not analogous to the two marriage cases before the court.

Justice Ginsburg has attracted attention recently with her remark that, while she supports the content of the Supreme Court’s decision in Roe v. Wade, it may have been rendered prematurely and thus be responsible for the enduring acrimony that plagues discussion of abortion policy in the country. Her comment, taken in the context of the pending decisions on California’s Proposition 8 (Prop 8), and the Defense of Marriage Act (DOMA), is of interest as a guide to her thinking, and perhaps, that of some of her colleagues; it is less compelling as a justification for timidity in the matter under consideration for at least two reasons: the two issues are distinguishable, and to the extent they are similar, her point must be regarded as not proved.

Taking the last part of that statement first, It is true that there seemed, fifty years ago, to be progress toward a modus videndi, an accommodation between a woman’s right to control her own body, and concerns for the rights of a fetus, or a religious community’s sensibilities. Certainly since then, the acrimony has taken root and flourished. The assumption is that absent the court’s decision, arresting political discussion, comity would have prevailed. Perhaps, but take the parallel case, clearly apposite here, of gay rights, also known as the most recent chapter in the continuing saga of American inclusion. Fifty years ago steps were being made towards greater equality for gays and lesbians; we cannot know what might have happened, and those steps seem small and timid today, but had they continued, even at that slow pace, we could easily have passed into full equality and acceptance by now. Fifty years is a long time. However without benefit of a Supreme Court decision recognizing gay rights for motivation, Anita Bryant took up the challenge to stop that progress and she succeeded spectacularly. So not having a judgement recognizing equal rights, did not spare the gay community from a backlash.

About the same time the court decided Loving v. Virginia trumping the will of 80% of the population and reiterating that the right to marry the person of your choice is fundamental. At the time, I believe that most people would have been more troubled by an interracial marriage than a gay or lesbian relationship, nevertheless the decision passed with scarcely a ripple and today the opponents of marriage equality (ironically called for the purpose of the Prop 8 case “the Proponents”) are unable to see the similarity between their position and the position of opponents of mixed-race marriage fifty years ago despite the striking similarity between arguments then and now. They cannot see that, ignorant of what we now know, those opponents of a generation ago believed as fervently, and for the same reasons, in their cause as do today’s opponents to marriage equality for gays and lesbians.

I must digress briefly to dwell on the court’s phrase: “the right to marry the person of your choice.” Opponents of marriage equality sometimes say that there is no inequality because a lesbian is equally free to marry the man of her choice as any other woman is. That of course, echoes the position fifty years ago that a black man could marry the non-white woman of his choice and a white man was equally barred from marrying a non-white woman. With very few, well justified, exceptions, we hold that marriage is meaningless if it is not to the person of your choice. And that abstract consideration, with very real consequences, does not even include the considerable damage to the spouse of someone who was coerced, by an unjust law or policy, to marry against his inclination.

So Justice Ginsburg’s implication that because the decision in Roe was followed by acrimonious struggle about abortion policy and law, the latter was caused by the former smacks of post hoc, propter hoc logic, which as we all know is a fallacy.

The second problem with her analogy is that the two issues, and the cases that arise from them are dissimilar in material ways. They are similar in that opponents are most often from the same religious background and invoke, as I have mentioned, similar, not to say identical, arguments for lack of the ability, in court, to raise their real objection: “God says it is wrong.” But the reason that Roe has endured as a passionately disputed issue, and that marriage equality seems to have completely vanished as a point of contention wherever it has been tried, is that in Roe there are competing interests to champion. Simply put, what right does the state have to tell a woman what she can do with her own body? Similarly, what right does anyone have to murder an infant? By putting it thus, I beg the question of the intersection of competing rights, and I have no pretence that I can solve the dispute any better than all those who have tried, but with competing interests come enduring passions, and the only possible consensus will come as a result of political accommodation of the concerns of both sides.

In the case of marriage, the real dispute is between the couple and the state that wants to deny the status. There really is no one else involved; that is why the case should be decided in favor of marriage equality. In weighing unspecified, speculative damage to unspecified persons against real and immediate damage to very real couples and their dependants, there can be no hesitation, and there is every reason to believe, even absent the demographic prophecy from recent polling of young people, that the issue will fade as it did with interracial marriage after Loving, and as it has done here since Goodridge in Massachusetts, and around the world where it has been tried. Almost everyone has much better things to do with their time than to fret that their neighbors might be happy.

That is an example of the genius of the framers of our Constitution: they realized the difference between what is called “negative rights” and “positive rights”. Negative rights are those that tell the state what it cannot do to a citizen. As a general rule, they do not cost anyone any money; as Jefferson put it, they do not pick his pocket. And as a general rule they can be close to absolute. The state has no rights; it has powers derived from the citizens such as are necessary to do the citizen’s business, but powers are not rights. In a competition with individual rights the state must lose, and only imminent harm to other citizens can prevail. By contrast, positive rights assert what a citizen can demand from the government, and that almost always leads to a claim against fellow citizens, picking their pocket, so to speak. That is not to say that such claims do not exist, just to say that they are different, surely weaker than negative rights. Where citizens have competing claims, the result must be political. There is no legal solution to the dispute about abortion; we must reach a political solution because there are competing claims, not necessarily equal claims, but clearly competing ones.

So the court would be wise not to follow Justice’s Ginsburg’s advice and defer judgement. While letting Prop 8 stand for California alone, will not change the judicial landscape since nine other states, and the District of Columbia already recognize marriage equality and live with the consequences of unequal recognition by other states, countries, and the federal government, a partial decision on DOMA will surely and swiftly lead to judicial chaos. An activist court is not one that reaches a decision I do not like; an activist court is one that reaches a decision that it did not have to reach to do justice, in the case before it, under our laws, or that refuses to reach a decision when it is necessary. To refuse to reach the decision imposed by the law and the arguments, is to nullify the will of the people expressed in the Constitution; nothing could be more activist, more reprehensible than that.

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What does the Second Amendment Mean, Part II?

After Andrew Cumo, governor of New York, recently used a rant scarily reminiscent of demagogues from past days, to ram a bill through his legislature, a bill so carefully thought out that it served to disarm most of the police in his state; now Colorado is considering seven anti-gun bills. Most of the discussion is not about what happened at Newtown, and how we might prevent its recurrence; not about the daily slaughter in Chicago, a city with among the most restrictive gun laws in the country, but about what is the best way to infringe the right of the people to keep and bear arms, and how much we can get away with if we use the emotion of the moment to drown out reason. Is there a better example of the meaning of the word “demagogue”?

The Second Amendment is part of our national Bill of Rights, the first ten amendments to the United States Constitution, presented as a whole and meant to clarify important aspects of the original document. Knowing the care with which the authors crafted the Bill of Rights, we should study and can draw conclusions from exactly what they wrote. They did not wait for a bill to be passed before they read it. It is well to note that the founding documents are the foundation of this nation. More than anything else they are what define us and what bring us together. The oaths of office of public officials throughout the nation require such officials to preserve, protect, and defend our Constitution. It is not something to be taken lightly, particularly by those who have sworn a sacred oath to uphold it.

Amendment one starts out “Congress shall make no law . . .” meaning that, at the time, the prohibition was on Congress to stay completely out of matters of religion, and free speech. The various phrases work together to explain that, no, free speech cannot be limited by, for example, blasphemy laws, no matter how much believers yearn for such restrictions. And freedom of speech means in public, and with the right to spend money on high technology to spread our individual thoughts and the right to band together so to do.

Amendment two says that the right to bear Arms “shall not be infringed”. It does not limit the prohibition to Congress. The word “infringed” is about as sweeping as I can imagine. I have to assume that limits on this right will have to be very, very well justified.

Much has been made of the preamble to the Second Amendment: “A well regulated Militia being necessary to the security of a free State . . .”, most notably to try to say that it limited that right to a right to join the army or perhaps the National Guard. That idea, rejected by the Supreme Court, is obviously erroneous because, while the phrase “the people” can mean many things, including, for example, the prosecution in a criminal case, or the government in official documents, in the Bill of Rights, we have only to glance at the Tenth Amendment to see that the authors of this document drew a sharp distinction between the United States, the several States and “the people”. It is the people individually who have the right to bear arms, and to keep them. And it is the people individually who make up the militia.

So the Militia referred to is not the army nor the National Guard. It is the people, and therein we find what is at stake here. Remember that at the time, there was no police force, as we now know it. As a rule people not only took care of themselves, they banded together to protect each other and the community. You can see the idea in the modern neighborhood watch, but it is much more profound. A recent court decision holds, so I have read in the New York Times (28 June 2005), that the police have no duty to protect you. Certainly in the recent desperate man hunt in California, the police made it clear that they placed a higher priority on defending each other than on defending the general population. On 9-11, when the government failed to protect the people, Todd Beamer and the passengers of Flight 94 took charge; although unarmed, they were the only American response on that day and it is likely that they saved the White House or the Capitol. We can speculate that if the accepted safety policy at the time had not been to disarm (morally) passengers on airlines, telling them to submit to hijackers with the idea that resistance would only cause needless injury, perhaps one or more of the other flights might have been stopped. In the months following, trying to take over an American air liner was vigorously discouraged by the passengers. I present these musings, not as a well-thought-out policy, but merely as rebuttal to the prevalent assumption that a disarmed population is a safer population. That question has not been settled.

I contend that the Militia referred to in the Second Amendment is the people acting as the first line of defense of their country. In that case the issue under discussion is not the number of bullets in a magazine, nor as the Vice President seemed recently to indicate what is the proper gun with which to murder a six-year-old girl, but to quote Lincoln accurately: “that government of the people, by the people, for the people shall not perish from the earth” The current President misquoted that phrase in his Second Inaugural Address when he said “government of, by, and for the people. . .” I do not believe that this is an inconsequential error. In Lincoln’s speech, “government of the people” meant the people are governed by themselves and for themselves. Pretending that he spoke of a remote government that could be said to emanate somehow from the people, distorts Lincoln’s powerful statement that the American Revolution (not the War of Independence, but the challenge to the very order of things that this country has always represented) was the idea that the people should not be governed by their betters, or any other distinct, distant, group, but essentially by themselves.

People who love to quote Lincoln while holding that there is nothing particularly admirable, nothing exceptional about America, should note carefully that he feared that if, in 1863, the experiment failed here, it would thus vanish from the earth.

As the American revolutionaries had learned, the world was not ready for anarchy, and agreements and institutions were necessary, but they intended that as much as possible the people should be their own government, and when they needed state institutions, those institutions should be answerable to the people and not vice versa. This idea was, and remains, truly revolutionary; I would say that it is the only real political revolution of lasting value to the people of the world.

An armed populace is not necessarily a violent population. The value of respecting the right to bear arms is manifest long before we reach armed confrontation. In the first place, accepting the people’s right to bear arms, recognizes their status as sovereign, and accords them due respect. In the second place, governments are wont to treat an armed populace with more deference than one that they have successfully disarmed. In the third place, the people are the only ones who can be counted on to be present when bad things happen.

We do not honor or memorialize the dead children of Newtown or Chicago by throwing out our birthright; and stripping their brothers and sisters of the American dream. We do not make others more safe by passing laws that everyone knows would not have stopped those tragedies. If we want to honor those children, we should thoughtfully, and without prejudice, examine how we might make such occurrences less likely in the future. If, perish the thought, another troubled person should invade an elementary school, and we know that no measure of gun control, not even total confiscation, will make that impossible, we know that the President, the Vice President and the Governor will not be there. It is very likely that the police will not be there and will take some time to arrive. If we want to help those children on some unhappy future day, we can think about how we could discourage such a person from choosing a school, or even choosing such a course, and we can think about what the people who are present when it comes to pass can do to stop it. Americans should always understand that they are each first responders and the last line of defense.

In case it is not clear, there is much to consider in the wake of recent tragedies, but we should not carelessly, and without discussion, abandon what made this country unique in history and what Lincoln thought was the justification of the carnage of the Civil War.

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What does the Second Amendment mean?

There is a lot of noise recently about guns. It would be inaccurate to call that noise a debate for many reasons. An important reason is that the language used in the noise, and the language we have available to use, is degraded to the point that it is hard to determine what is being said. It is sad to note that, very often, speakers want to confuse rather than elucidate their listeners. I hope to clarify some of the issues at stake; it is not my intent to argue for an answer, and my reason for avoiding a personal opinion should become clear eventually.

The echoes of gunfire in Newtown, Connecticut, had not stopped reverberating, and as we can all remember; the stories being reported were still wildly inaccurate, when politicians jumped on the opportunity to grab the spotlight and further their agendas. Since they acted before anyone knew what had happened, there is little reason to suspect that they were responding to the events. Some may have thought they were, taking the well-known tack: “I know it will not help, but we must do something.” Certainly, in such a case, there is no great probability that what we do will help others, so it must be done to help ourselves. Emotion is a better tool for a demagogue than reason.

The Second Amendment is invoked to in such expostulations. But an important aspect of this lack of communication is the failure to ask, let alone answer, the question: “What does the Second Amendment mean? What right does it protect?”

That is called “begging the question”. This phrase has become popular recently with people who want to appear more erudite than they really are, and throw it around, usually in situations where it seems they mean “raise the question”, but that is precisely what it does not mean. This is more than mere whining by a grammarian. Symbolic language is what set us apart from other animals, and it is the tool we use to survive and improve our common lot in life. A dull tool is less useful than one that is well maintained, and a perverse disdain for proper language and the learning of good language and the improvement of our language will disarm us in our daily struggles to help ourselves and each other. This theme will reappear in this blog.

To beg the question means to avoid discussing the question at issue, and proceed to argue as though the point were settled in your favor. If you have not been taught this technique, you will more easily fall for the gambit.

First, the Second Amendment has nothing to do with hunting or “legitimate sporting purposes”. Go read it. Read the whole Constitution. Read the copious documents that were written to support and oppose it. Nothing there. Nevertheless, Americans have a right to hunt, and a right to use firearms for sport; it is just not in the Second Amendment. For that reason saying that you do not intend to infringe the right to hunt, in no way indicates that you do not intend to infringe the right to bear arms a set forth in the Second Amendment; as things stand, it rather raises the suspicion that you do.

Some people have recently begun to voice the obvious fact that the Second Amendment refers to guns that could be used to oppose a usurpative government. That is perfectly true, and remember that the people who wrote it were not thinking, any more, about King George, but rather about the very government they had just established according to the best principles they could hammer out together. It is true, but not the whole story, and for people today, some of whom cannot conceive a world outside their own comfortable existence, not the best argument. It should be noted on this score, that since the Second Amendment clearly refers to a militia, the assault rifle is probably just exactly what the delegates meant. Not that that means that we have to allow people to own fully automatic weapons, but rather that we have to argue and agree democratically why they should not. We cannot just pretend that such a thing is ridiculous.

The larger meaning of the Second Amendment may be found in its environment, both in the words around it and the culture from which it grew. It may come as a surprise to many people that the Constitution was not the result of a manufactured crisis, hatched in secret, and adopted with no time to read it, let alone debate it. Every word was discussed, every phrase scrutinized, by people who had been developing their ideas of self-government in their various colonial governments for scores of years. The Bill of Rights came about because enough people thought the Constitution lacked explicit protection of certain rights that they deemed essential to the survival of a free people to persuade the majority to correct the oversight. Hunting and sport do not rise to that level; there is something very basic at stake here and it is important to think seriously about it before throwing it away in a fit of manufactured emotion.

 

Next:  what are we overlooking by failing to understand the Bill of Rights as a whole, as more than the sum of its parts?

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Indiana Legislature will not move HJR 6 (the marriage discrimination amendment) this year.

Speaker of the House, Brian Bosma and Senate President, David Long have announced that the marriage discrimination amendment (HJR 6) will not be heard, nor acted upon, this year. They pointed out that the U.S. Supreme Court will rule this spring on the issue of marriage equality and that it would be embarrassing for Indiana to have a ballot initiative on an amendment that had already been declared repugnant to the United States Constitution. If the two houses pass HJR 6 before the next election, there is no way to keep it off the ballot in November 2014, so they, and we, will await the pleasure of the court.

There is little doubt that the Supreme Court will find, one way or another, that Proposition 8 in California is unconstitutional and that the right to marry the person of your choice there must be respected. But there are several ways that their decision could be limited to California or to some states in the Ninth Circuit. Similarly there is little doubt that the court will find that the United States government must respect legal marriages from any state and treat citizens accordingly. But it is less clear that they must extend marriage equality to all the states, based on the cases in front of them.

There is a principle of judicial review, which I remember from my childhood, but which seems in recent years to have been honored more in the breach than in the observance, which enjoins the courts to draw the narrowest possible scope to their decisions. Recently I saw it cited by the United States Court of Appeals for the District of Columbia: “It is a well-settled principle of constitutional adjudication that courts ‘will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.'” In this case that means that if they can come to the right decision, or outcome, in the cases before them, which involve specific wrongs to specific people (and other similarly situated), then they should not take the opportunity to make sweeping pronouncements about other aspects of the laws before them, or other laws. To do that, by the way, would be judicial activism; not the act declaring an unconstitutional law invalid, which is their job, but the act of making judgments that are not necessary to rendering justice in the case in front of them, even if I wish they would do so.

When I was young, lawyers went mad trying to find the perfect case where the only way the court could decide would force the constitutional precedent they desired. They had to find a case where the only issue was the constitutional one. For example, this fall the court asked the lawyers in the Proposition 8 case to brief them about the question of whether the appellants had standing to appeal. If they did not, there was no valid appeal, even to the court of appeal; the original judgement would stand, and apply only to California. The court may have had other reasons to make that request, so it would be wrong to read too much in to it but that is one outcome that would do justice in the lawsuit filed in California, but would have absolutely no effect elsewhere. That is one reason why it is sometimes beneficial for the government to appeal a judgement even when it agrees with it. If there is a valid appeal to the Supreme Court, their judgement becomes the law of the land. If there is no appeal, the judgement is merely local precedent and useful in argument.

As I wrote above, it is no my sense that the court has been nearly so persnickety of late, so you might think, or hope, that they would decide these cases with a broad brush and declare any such limit on the fundamental right to marry the person of your choice, and be treated equally when you do so, unconstitutional. ‘Tis a consummation devoutly to be wished. But this court has signaled a sensitivity to public opinion, to political pressure, and a reluctance to make robust decisions. It is equally erroneous for a court to show too much deference to the legislator, nullifying the will of the people expressed in the constitution, expressly to constrain that legislator, as to overreach by making pronouncements that are not justified, not compelled, by the case in front of them.

So we will wait for the spring to find out if, for the nonce, spouses of federal employees will get benefits and people in California can marry irrespective of invidious classifications but the rest of us are untouched or if the struggle for marriage equality and with it the core of this chapter in the struggle for equal rights is over in this country. The legal issues in the cases before the court seem clear, but the question of scope and how the court will navigate the issues before it and pressures upon it are murky.

I had planned to write on how the decision of the House and the Senate will affect our lives in Indiana for the next year and more immediately for the next couple of months.This post is long enough and I will recur to my intention soon.

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Welcome

Welcome to my blog. I hope to record my thoughts here. The title, Thinking Darwin, acknowledges the central position of Darwin’s work to our lives in the modern world. I believe that I once saw a banner on the Notre Dame website stating that our world could not be understood without understanding his work. I believe that very few people actually understand that work and its import. Of course, there are those who “do not believe” in him. But you have to include also those who do believe in him. One of the important aspects of Darwin’s thought is that it has nothing to do with belief.

I will be developing my thoughts on the subject, and interspersing that thread, with thoughts on current events and discussions (which may elbow out the main thread from time to time) and stories that I have heard or read or observed.

I welcome contributions and additions.