ONE CONTENTIOUS ISSUE

There is probably no more contentious issue a teacher can bring up in class than the issue of abortion rights.  This writer can personally attest to the emotions this issue can surface in the classroom.  Should it be avoided due to this reaction on the part of students or is there a way to handle it?  And by handling it, can a teacher have students discuss the elements of it including how the issue relates to federalist values with the order Philip Selznick identifies as a “pillar of reason?”[1]

          Of course, this federalist concern is what makes these questions relevant to this blog.  So, any treatment of it should first point out how the issue is a federalist one.  There is more than one concern along these lines, but here, in this posting, one will be emphasized.  That is, this issue either reflects harm that can be done to a person’s sense of dignity and integrity or, more central, to his/her right to life.  Either way, this issue involves very central federalist values.  And a lot of this issue revolves around definitions, the definition of life, of personhood, and of rights. 

This posting targets the bi-categorization of what is at stake.  Does an abortion deny life generally or does it deny life to a person?  The “right-to-life” proponents – that is, those against abortion rights – claim that an abortion is tantamount to murder.  It extinguishes life from a human being.  The right-to-choose people – that is, those that argue a woman should have the right to determine what happens to her body – claim that an embryo or a fetus, to various gradations, is not a person. 

This last claim needs a bit more clarity.  That is, according to the claims of the right-to-choose camp, a human entity must be mature enough as a fetus or must be born to be a legal person – “person” is the term the Constitution uses to designate a human entity worthy of recognition in terms of rights.  This all sounds very legalistic and devoid of the humanity involved.  But when one speaks of rights, especially when the rights of parties are in conflict, that’s what tends to happen.

This posting will not take a stand on the issue.  The purpose of the blog is avoid doing so when the question cannot be comfortably settled by classifying it clearly as being a federalist related issue or problem.  As the above definitional ideas demonstrate, one can be pro-federalist on either side of the issue and, in effect, the parties do not agree as to the federalist stakes involved. 

Therefore, using this issue in the classroom should make this factor clear and well-known.  What this posting seeks to provide are facts that affect how one views this issue and, in turn, how it affects the quality of federalist rule.

The first fact this writer feels is relevant is a portion of the First Amendment to the US Constitution.  It reads, “Congress shall make no law respecting an establishment of religion …”  It immediately goes on to state “… or prohibiting the free exercise thereof …”  But it is the first phrase that seems to be relevant.  How can a government “establish” a religion?  Can it do so by legislating a religion’s moral precepts? 

Some think yes, while some disagree.  Those who disagree cite the role religions play in expressing culturally accepted moral precepts that people believe law should advance.  In terms of the latter role, for example, surely religions state murder is immoral.  Should that not be considered by lawmakers when considering banning murder? 

In Reynolds v. United States, 1879, the Supreme Court upheld a federal law banning bigamy (another behavior generally believed to be immoral), but the decision was not clear as to whether the decision was based on a religious rationale.  That Court more than hinted that such a law had enough secular consideration behind it to legitimately ban bigamy and therefore its rationale is not limited to a purely religious belief.[2] 

Subsequent cases listed by the Bill of Rights Institute show a clear recurring theme; law cannot be dictated by religious precepts or religious interests – they cannot also hinder people from believing or abiding by religious precepts assuming those beliefs do not counter constitutionally legitimate laws.[3]  Either way, laws seem to need secular reasoned rationales to pass constitutional muster, especially when they prohibit citizens from pursuing their life’s choices.

So, how does this relate to the abortion issue?  The question for a class, therefore, would be:  is a woman seeking an abortion aiming to commit an act that is or should be illegal?  And, is the terms of the illegality sufficiently secular, as opposed to sectarian, or, by being so central to traditional religious beliefs (seen as a form of “murder”), does this behavior constitute an exception to the general determination of the courts?  Is it the belief that upon conception, the embryo is given a soul by God and, therefore, is a full-fledged person?

Another line of inquiry that is relevant has to do with the right-to-choose argument.  Those who argue this position seem to be relying on certain aspects of the gestation process an embryo or fetus undergoes.  For if the ultimate concern is whether one is dealing with the rights of a person – minus any religious claims – then it seems reasonable that the test is how closely that entity – an embryo or a fetus – takes on the attributes of a person during gestation and when do they happen?

In this, David Brooks provides useful information.[4]  He reports:  at the fetus stage, a fetus grows 250,000 brain cells a minute and by birth has 20 billion brain cells.  He/she develops early in the fetus stage taste buds which can recognize sweetness and garlicky flavors from mother’s latest meal.  The fetus, at five months (out of nine) will begin to withdraw from pain.  By the third trimester, the fetus’ eye movement indicates he/she is probably dreaming during sleep.  It isn’t until the third trimester that he/she indicates any consciousness even of his/herself.

“Herold [the name Brooks gives his exampled case] spent nine months in the womb, growing and developing, and then one fine day, he was born.  This wasn’t a particularly important event as far as his cognitive development was concerned, though he had a much better view.”[5]  Of course, gestation is noted for a whole slew of developments, some being extremely complex.  But what teachers should ask students is:  if being a person is the criterion, as the right-to-choose people argue, then of these developments, which are most relevant to the concern over whether a fetus is a person?

The Supreme Court has answered that question with the determination that at the third trimester of gestation, the fetus has unqualified right to be considered a person.  Extreme measures – such as the endangerment of the mother’s life – need to be in place for that fetus’ life to be legally terminated.  But a one-month fetus or even a five-month fetus is not considered enough of a person to be granted unquestioned rights of a person.  Is this a correct standard or the application of a correct standard? 

Some argue that not even a fetus of any age should be granted those rights.  What do students think, if they can get pass the religious standard to consider such a question?  But even religious people should consider this question because it helps them know and understand where the right-to-choose people are coming from. 

Similarly, the right-to-choose people should know and understand the reasoning of the right-to-life people.  Even if it is difficult, given the importance of the issue, helping students to do this – either way – falls within the responsibility of civics instruction.  At least, it seems to this writer, that is the case for any civics teacher that accepts federation theory to guide his or her efforts.

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[1] Philip Selznick, The Moral Commonwealth:  Social Theory and the Promise of Community (Berkeley, CA:  University of California Press, 1992).

[2] “Religious Liberty:  Landmark Supreme Court Cases,” Bill of Rights Institute, n.d., accessed November 7, 2019, https://billofrightsinstitute.org/cases/ .  One should note that this was a federal law, not a state law which usually legislates over police power issues; i.e., laws protecting the welfare, safety, justice, morals, order, and health of state’s citizenry.

[3] Ibid.

[4] David Brooks, The Social Animal:  The Hidden Sources of Love, Character, and Achievement (New York, NY:  Random House, 2011).

[5] Ibid., 31.

MAJORITY POWER AND MINORITY INTERESTS

This blog, as its regular readers can attest, promotes federation theory.  The introduction to this posting, found in its Blogspot version, reviews the general ideas constituting that theory.  As that review indicates, the aim of issuing and promoting the theory is to offer civics teachers a guide by which to choose content for their subject.  Through the history of the blog, this writer has informed the blog’s readers what the attributes of that theory are.

          One of its main set of ideas has to do with what constitutes an ideal makeup in a polity’s governance.  That includes the attribute of a qualified majority rule.  That is, an ideal federal union is structured so that policy is enacted through mechanisms that reflect basically the majority wishes of the citizenry with some provided safeguards.  Safeguards against what?  Against the majority exercising tyrannical rule over minorities such as those minorities that hold unpopular views or that are comprised of members who are unpopular.

          This concern goes beyond merely identifying and protecting individual or group rights.  A government, for example, can protect its minorities’ right to voice their opinions, but at the same time enact laws that fundamentally endanger their interests.  This, historically, has been the case of racial and ethnic minorities.  Some of these interests are considered essential to further or even protect the viability of these groups.

          One group that felt this way – that today is viewed as deserving any such laws – was the slave states of the South prior to the Civil War.  And a politician/political theorist who spoke about the implied danger tht majority rule presented this group was John C. Calhoun. 

Since representation in the House of Representatives was becoming lopsided in favor of representation from the non-slave states, Calhoun feared that the federal legislature, Congress, posed a potential threat to the South and its perceived basic interests.[1]

          Yes, laws need to be enacted by both houses of Congress and that includes the Senate.  As long as the Senate was composed of equal numbers from each state and there was an equal number of slave and non-slave states, the Southern senators could, in effect, veto any legislation that threatened the fundamental interests of the South. 

But the development of the nation – in its western expansion – promised that that safeguard did not enjoy a safe future.  This encouraged Calhoun to devise a solution.  And his solution was to further “qualify” majority rule.  Here is how Fred McBride describes the issue for Calhoun:

Hence several problems arise from a majority-rule principle. Tyrannical majorities are able to rule in their self interest and force views on the minority. Individual liberty is suppressed. Diversity is minimized, and the majority's progress stands little chance of impediment. The common wellbeing of those in the minority is jeopardized. [2]

          In all this, one should keep in mind that not only slave states are minorities, but so are many other groups within a polity at any given time.  While one is well justified not to worry about slave state interests, the concerns over minority rights and interests are important in that one can cite the role the courts, especially the Supreme Court, have played in dealing with minority rights.  

History, though, provides a mix record; the Supreme Court has both protected minorities – e.g., Brown v. School Board of Topeka – and has also advanced the power of the majority – e.g., Plessey v. Ferguson.  Other cases can be cited both protecting or threatening minorities and their interests.  So, perhaps a closer look at Calhoun and his thinking in this regard might be useful for those concerned with minority rights.

This is the case if for no other reason than to see if other ideas occur to current thinkers who are concerned with the plight of minorities such as racial groups, various ethnicities, people of various sexual orientations, women concerned over reproductive rights, etc.

          To begin, Calhoun saw the purpose of government as preserving and protecting the common good of society – so far so good.  Consequently, government and society are strongly related.  But government has a tendency to abuse power.  Why?  Because it can, or can readily do so for the sake of powerful members of the polity.

In addition, in terms of the federal government and the states (such as South Carolina where Calhoun was from), the states are sovereign entities – they did not relinquish that sovereignty by agreeing to the founding compact, the US Constitution.

          Therefore, given how the politics of the nation had evolved since the Constitution’s ratification, he is described as making the following observation:  “[T]hat there were no provisions which prevented the federal government from encroaching on the powers reserved to the states. Thus, the problem, according to Calhoun, lies in numerical majorities which ultimately lead to absolute governments.” [3]  

His solution to this anti-republican attribute lay in his claim that the government should not be managed or run by politicians chosen by numerical majorities.  Instead, it should have representatives chosen by a concurrent majority in which each of the polity’s major groups be given a voice, through some system, to indicate their preferences regarding pending policies – such as proposed bills.

What system?  Here is how the historian, Richard Hostadter,[4] describes Calhoun’s proposed changes to the legislative process:

… Calhoun seized upon the idea of state nullification.  The powers of sovereignty, he contended, belonged of right entirely to the several states and were only delegated, in part, to the federal government.  Therefore the right of judging whether measures of policy were infractions of their rights under the Constitution belonged to the states.  When a state convention, called for the purpose, decided that constitutional rights were violated by any statute, the state had a right to declare the law null and void within its boundaries and refuse to permit its enforcement there.  Nullification would be binding on both the citizens of the state and the federal government.[5]

The reader might find this system a bit interesting as to its legitimacy and practicality.  Would the states be in a recurrent habit of calling conventions on a monthly, yearly, or bi-yearly basis?  That would be an interesting proposition.  But as any understanding of American history indicates, this is a dead concern. 

What is of more interest is the whole sense of nullification by minorities.  And this interest was revitalized when Bill Clinton, in his initial transition to the presidency, named Lani Guinier as Assistant Attorney General back in 1992.  She had advocated a more recent version of constraining majorities in her work representing the interest of African-Americans and other minorities.  Her ideas are based on her conclusion that America is not color-blind.

          She argues – or argued back then – that the American society has been founded on racial divisions.  These divisions can be observed in certain practices such as housing, voting, employment to name but few areas of social arrangements where that is the case.  Why do these practices exist?  Because the majority – which is white – can and does exercise racial monopoly over those who are not white. 

Whites’ majority is based on their numbers, their power positions (including their positions in the economy and the political structure of the nation), and the resulting influence these other elements accrue to whites.  In short, due to these advantages among whites, non-whites’ interests are seldom, if ever, considered.

“For Guinier, in a racially divided society majority rule may be perceived as majority tyranny.  Thus the discussion of majority and minority relations in the 20th century [and into the 21^st century] becomes primarily based on racial and ethnic lines.”[6]  Of course, if accepted as fact, this evidence shows unfairness.  It can even be considered as whites, the majority, exercising a tyranny for the purposes of advancing their advantages and self-interest. 

In addition, there does not appear to be a way to dislodge these advantageous positions by whites.[7]  Under these conditions, whites continuously win and non-whites lose, a zero-sum situation.  Guinier, under these conditions, offers a way out where non-whites get something.

Her first goal is to get a way for everyone to be motivated to play in the national “game” of distribution.  Her suggestion includes rules that reward winners but can be acceptable to losers.  She cites the former Chief Justice Warren Burger who is quoted as arguing that the Constitution does not require that majorities always get their way.  With that, Guinier promotes proportional or a semi-proportional system as other than winner-take-all systems.  That is, she suggests a cumulative voting regimen and a supermajority option.[8]

Here are these proposals in turn:

Cumulative voting:  A voter has not one vote, but the number of votes equal to the number of options the voter has in voting for a candidate or a proposal.  He/she distributes his/her choice in a combination of his/her choosing.  For example, one way is the case for choosing a mayor of a city.  If there are four candidates vying for that position, the voter would have four votes in which the first three votes can be cast for his/her first choice and the last vote for the second favorite.  The candidate who gets the most votes wins.

          This option is not totally foreign to Americans.  It is used in thirty states by corporate boards or for selecting school board members or county commissioners.

Supermajority option:  Here this option can utilize a “super-district” strategy in which a proposal needs to secure a super majority, like 60%, before a proposal is adopted.  Again, this is somewhat in effect since most proposals in Congress must, to avoid a filibuster in the Senate, be supported by a 60% majority.  If this was instituted across the board, then policies would have to garner support from groups that hold non-majority standing in settings such as a city or a county.[9]

Lani Guinier was, in 1992, dropped from consideration for the Justice Department position because her writings engendered a lot of concern and the President-elect, upon further consideration, found he was also at variance with her positions.

          This posting draws attention to this challenge that majority rule poses because if the majority does treat minorities unjustly, then that is a federalist issue.  Civics teachers should question students about such treatment as it may occur in students’ local community, city or town, state, and definitely the nation.

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[1] Greg Timmons, “How Slavery Became the Economic Engine of the South,” History Network, August 31, 2018/March 6, 2018, accessed November 5, 2019, https://www.history.com/news/slavery-profitable-southern-economy .  The South produced 75 percent of the world’s cotton and if compared with other nations, the South would have ranked as having the fourth richest economy of the world.

[2] Fred McBride, “Strange Bedfellows:  The Political Thought of John C. Calhoun and Lani Guinier,” Endarch:  Journal of Black Political Research, vol. 1997, no. 1, accessed November 4, 2019,  https://pdfs.semanticscholar.org/b861/e2e50999d477329bd9742531c0716cee8b9b.pdf, 41.

[3] Ibid., 42.

[4] Hofstadter, R.  (1948).  The American political tradition.  New York, NY:  Vintage Books.

[5] Ibid., 71-72.

[6] Fred McBride, “Strange Bedfellows:  The Political Thought of John C. Calhoun and Lani Guinier,” Endarch:  Journal of Black Political Research, 45.

[7] More current demographic information seems to indicate that in terms of numerical standing, whites are being challenged by non-white groups (combined numbers of African-American and Latin-American groups).

[8] Ibid.

[9] “Lani Guinier,” Wikipedia, n.d., accessed November 4, 2019, https://en.wikipedia.org/wiki/Lani_Guinier .