By Mike Appleton, Guest Blogger
“We pledge ourselves to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.
-The Southern Manifesto, Cong. Rec., 84th Cong. 2d Session, Vol. 102, part 4 (March 12, 1956)
‘This was an activist court that you saw today. Anytime the Supreme Court renders something constitutional that is clearly unconstitutional, that undermines the credibility of the Supreme Court. I do believe the court’s credibility was undermined severely today.”
-Michele Bachmann (R. Minn.), June 26 2012
Most people are familiar with the opinion in Brown v. Board of Education of Topeka, et al., 349 U.S. 483 (1954), in which a unanimous Supreme Court summarily outlawed public school segregation by tersely declaring, “Separate educational facilities are inherently unequal.” 349 U.S. at 495. But many people do not know that Brown involved a consolidation of cases from four states. The “et al.” in the style refers to decisions on similar facts in Delaware, South Carolina and Virginia. And the response of Virginia to the ruling in Brown provides an interesting comparison with the actions leading to the current government shutdown.
In 1951 the population of Prince Edward County, Virginia was approximately 15,000, more than half of whom were African-American. The county maintained two high schools to accommodate 386 black students and 346 white students. Robert R. Moton High School lacked adequate science facilities and offered a more restricted curriculum than the high school reserved for white students. It had no gym, showers or dressing rooms, no cafeteria and no restrooms for teachers. Students at Moton High were even required to ride in older school buses.
Suit was filed in federal district court challenging the Virginia constitutional and statutory provisions mandating segregated public schools. Although the trial court agreed that the school board had failed to provide a substantially equal education for African-American students, it declined to invalidate the Virginia laws, concluding that segregation was not based “upon prejudice, on caprice, nor upon any other measureless foundation,” but reflected “ways of life in Virginia” which “has for generations been a part of the mores of the people.” Davis v. County School Board of Prince Edward County, 103 F. Supp. 337, 339 (E.D. Va. 1952). Instead, the court ordered the school board to proceed with the completion of existing plans to upgrade the curriculum, physical plant and buses at Moton High School. When the plaintiffs took an appeal from the decision, the Democratic machine that had for many years controlled Virginia politics under the firm hand of Sen. Harry Byrd had little reason to believe that “ways of life” that had prevailed since the end of the Reconstruction era would soon be declared illegal.
When the Brown decision was announced, the reaction in Virginia was shock, disbelief and anger. Reflecting the prevailing attitudes, the Richmond News Leader railed against “the encroachment of the Federal government, through judicial legislation, upon the reserved powers of the States.” The Virginia legislature adopted a resolution of “interposition” asserting its right to “interpose” between unconstitutional federal mandates and local authorities under principles of state sovereignty. And Sen. Byrd organized a campaign of opposition that came to be known as “Massive Resistance.”
In August of 1954 a commission was appointed to formulate a plan to preserve segregated schools. Late in 1955, it presented its recommendations, including eliminating mandatory school attendance, empowering local school boards to assign students to schools and creating special tuition grants to enable white students to attend private schools. Enabling legislation was quickly adopted and “segregation academies” began forming around the state. Subsequent legislation went even further by prohibiting state funding of schools that chose to integrate.
In March of 1956, 19 senators and 77 house members from 11 southern states signed what is popularly known as “The Southern Manifesto,” in which they declared, “Even though we constitute a minority in the present Congress, we have full faith that a majority of the American people believe in the dual system of government which has enabled us to achieve our greatness and will in time demand that the reserved rights of the States and of the people be made secure against judicial usurpation.”
Throughout this period the Prince Edward County schools remained segregated, but when various court rulings invalidated Virginia’s various attempts to avoid integration, the school board took its final stand. It refused to authorize funds to operate any schools in the district, and all public schools in the county were simply closed, and remained closed from 1959 to 1964.
There are striking similarities between Sen. Byrd’s failed plan of Massive Resistance and Republican efforts to prevent implementation of the Affordable Care Act. There was widespread confidence among conservatives that the Supreme Court would declare the Act unconstitutional. When that did not occur, legislators such as Michele Bachmann, quoted above, attempted to deny the legitimacy of the Court’s ruling. Brent Bozell went further, denouncing Chief Justice Roberts as “a traitor to his own philosophy,” hearkening back to the days when southern roadsides were replete with billboards demanding the impeachment of Chief Justice Earl Warren.
The House of Representatives has taken over 40 votes to repeal the ACA, quixotic efforts pursued for reasons known only to John Boehner and his colleagues. And in accordance with the Virginia legislative model, the House has attempted to starve the ACA by eliminating it from funding bills. Following the failure of these efforts, Republicans have elected to pursue the path ultimately taken by the school board of Prince Edward County and have shut down the government.
Even the strategy followed by Republicans is largely a southern effort. Approximately 60% of the Tea Party Caucus is from the South. Nineteen of the 32 Republican members of the House who have been instrumental in orchestrating the shutdown are from southern states. It is hardly surprising therefore, that the current impasse is characterized by the time-honored southern belief in nullification theory as a proper antidote to disfavored decisions by a congressional majority.
In reflecting upon the experience of Virginia many years later, former Gov. Linwood Holton noted, “Massive resistance … served mostly to exacerbate emotions arrayed in a lost cause.” Republicans would do well to ponder the wisdom in that observation.
Bron: Your assertions are not true. All the regulations you complain about were non-existent before in this country, and were instituted because without them abuses and exploitations were present. That is the fact of the matter, regulations were caused by outrage and losses that forced politicians to act, just like the current outrageous abuses by health care have to be addressed, just like the filibuster reform had to be taken up because of abuse, and on and on. Regulations that restrict corporations are a result of citizen outrage.
Tony C:
You can say that all you want. If a super-majority says that one small group of people are unworthy of life who will protect them?
Your way is a law of men, not objective, not based on anything but the will of the majority. I am not buying what you are selling.
Bron: and invoked inalienable rights form our Creator, either nature or God; based on our nature as human beings.
Except I do not believe in a Creator that can grant anything, neither God nor Nature. God is a fantasy and Nature’s only rule is force; it does not grant protection even to infants.
I think what the Founder’s meant was what they said in the DOI, some truths are self-evident. That means they do not have to be justified as God Given, Creator given, they just are true.
Scientists and mathematicians call them “axioms,” the starting point of reasoning; the fundamental truths you do not have to explain because the truth of them is obvious, and necessary for a logically coherent (not self-contradicting) system.
Tony C:
Your life and death decision is a straw man. Health insurance would be much more affordable if there were fewer regulations and people paid for their own doctor visits and run of the mill medications for minor injuries and illness. The cost of a doctor visit would fall also as would drug prices.
Health insurance should be for catastrophic care like cancer or an auto accident not for birth control or viagra.
And charity would pick up any slack, we used to have to charitable hospitals all over this country.
The fact is that the word Hospital comes from hospitality. Hospitals were conceived in the middle ages to care for the poor, sick, hungry, etc. The Church played a big role. Do you not think the same would happen today?
Just because you may not have a charitable bone in your body, doesnt mean other people do not. My wife and I give to charity, DavidM gives to charity, Nick Spinelli gives to charity. Do you not think there are hundreds of millions of us who would gladly give more if we were not burdened by tax dollars? Go back and look at charitable giving in the Reagan years or in any time with a good economy and a reasonable tax rate.
You have no clue what you are talking about and you insult the good people of this country by suggesting we would let one person die in the streets let alone millions. What a bunch of hog wash.
Bron: So then a right is whatever a super-majority wants? How will that work for you when a super-majority determine that you arent worthy of life?
A Right is whatever a super-majority wants for all people, including themselves. If they decide I am not worthy of life, they decide the same for themselves. That seems unlikely. But a right to not be murdered, and an obligation to find and punish murderers with imprisonment or death, that seems like the kind of thing a super-majority can agree upon to apply to all people, including the murderers amongst them that might disagree. A Right to not be enslaved, to a Trial by citizens, to free speech, and so on — those are Rights a super-majority can agree should apply to all people in order to secure those Rights for themselves, their family and friends.
Skip: The war on drugs is not a socialistic policy. In our Democracy, in my opinion, it should not even exist for marijuana, the majority think pot should be legal. It is not “socialist” to be a nanny-state, that is just pure authoritarianism, patriarchy, theocracy, dictatorship, or totalitarianism like Fascism.
“P.S. So to the extent that what I find self-evident and obvious as a Right is also found by a super-majority of adult citizens to be self-evident and obvious, in identical words, we have a Right. The source is the imagination of one or more humans in phrasing that Right, and the force behind it is the agreement of the collective to defend it as written.”
So then a right is whatever a super-majority wants? How will that work for you when a super-majority determine that you arent worthy of life? And there is the state to fire up the ovens doing the will of the collective.
A right determined by a majority is not a right at all, it is why Thomas Jefferson and others wrote the Declaration of Independence and invoked inalienable rights form our Creator, either nature or God; based on our nature as human beings.
Our rights do not come from the sanction of a super-majority, they come from our nature as rational beings. You have a right to exist which no man, no collective can take away from you based on a super-majority vote.
You enter into society not to attenuate or abrogate your rights but to protect your rights, to protect your life, your liberty and your property.
Bron: Tony C wonders why auto, home, life insurance are cheaper and provide better service.
I do not wonder that at all.
Bron says: Just imagine how much auto insurance would cost if you had a $15 dollar copay for a tune-up or a brake job and imagine how much more those services would cost.
That is a valid argument in regard to car insurance. But it doesn’t apply to health insurance because you cripple your argument by citing low-cost services that do not coerce a decision between life and death. You don’t have to choose between a tune-up and your life; you don’t even have to choose between a brake job and your life. If your brakes are flawed, you can take the bus. For both of those services, competition is rampant and you have plenty of time to shop. Plus, most people can learn to do it themselves, safely, in a reasonable amount of time. When you require surgery to excise your cancer or repair the damage of your heart attack or stroke or car accident, none of those options apply, do they?
The regulations reflect the inherent lack of options, which produce opportunities for exploitation and abuse. The regulations do not cause the lack of options. The co-pay idea was invented by the insurance companies. Meds and examinations are preventative measures that reduce the incidence of expensive repair treatments.
DavidM:
I read that same work by Il Duce a few years ago. Wasnt he a socialist before he was a fascist? As I said before, socialism with a nationalist tendency is fascism. Just as Marx/Engles used communism and scientific socialism interchangeably if memory serves. Marx also thought the utopian socialists such as Owens and Fourier were crazy.
It is quite apparent that neither Tony C nor Gene H understand the terms they throw around. And as var as argument by virtue of verbosity? What a laugh, Gene H and Tony C are the inventors of that method.
Tony C wonders why auto, home, life insurance are cheaper and provide better service. I think the answer is simple; auto and home insurance arent as heavily regulated as health insurance and they dont pay for an oil change, a tune-up, new windows or a fresh coat of paint for the exterior.
Just imagine how much auto insurance would cost if you had a $15 dollar copay for a tune-up or a brake job and imagine how much more those services would cost.
Then look at cosmetic surgery and lasik, how much the cost has come down and how the quality has improved. Cosmetic surgery used to only be for the rich, now the middle class can afford a tummy tuck, a face lift and better vision.
P.S. So to the extent that what I find self-evident and obvious as a Right is also found by a super-majority of adult citizens to be self-evident and obvious, in identical words, we have a Right. The source is the imagination of one or more humans in phrasing that Right, and the force behind it is the agreement of the collective to defend it as written.
Tony C. Of course a drug prohibition is a socialistic policy. Do they not call it a social policy or program? Is it not administered by the government and therefore a statist policy? Is it not purported by advocates to be enforced by government under the general welfare clause? Is it depriving/usurping the rights of the individual for the so-called benefits of the common good. Does it not place legal priority or precedence by government ahead of the individual?
We don’t generally consider a drug or alcohol prohibition a socialist program but it is surely being administered by the public sector and not by the private sector. The drug trade is however black market and therefore libertarian. We would prefer however if they wouldn’t put people in jail for participating in such activities.
Military defense is another example of a social program and therefore, yes it is also a socialistic program, as are all things provided by the public sector. Public parks; do they not fit all the same criteria of the war on drugs. Poachers, of course are the black market. With military defense, if it were provided voluntarily by militia groups, it would be in the private sector and therefore free market derived and the libertarian approach to providing security and defense. Now doesn’t that make a lot of sense to you?
Secondly, there is generally no agreement by the collective. There maybe agreement amongst the collective leadership, but that may or may not be in the best interest of the majority as it is often subject to special interest manipulation. The general masses are easily fooled and bribed and one of the many reasons your concept of democracies and their benefits is not as you perceive. We can of course debate this as you appear to want to debate everything but I’d rather see you read the voluminous materials on the subject.
DavidM: How then do you deal with taxation? Are you saying that the power to tax is not a right of the collective?
No, in my view it isn’t a Right. It is the flip side of a Right for individuals, the Right for the individual is a promise of No Action by the collective, and a promise to investigate and prosecute violations of the Right, in return for the obligation of investigating and prosecuting violations of the Rights of others and contributing one’s fair share to whatever common goals the collective agrees upon.
That obligation of the collective to individuals (either in need or victimized by crime) have to be paid for; taxation is the means by which the collective agrees to pay for the personnel and resources necessary to meet those obligations.
Taxation isn’t a theft or taking, it is the collection of one’s fair share of the debts we have collectively incurred. In my view, it is most analogous to rent and profit sharing (with “profit” defined as revenue minus legitimate expenses).
DavidM says: In the past, you have indicated that an individual does not have the right to form police, courts, or military. Where does the right to form these come from if not from the collective?
I’m not sure what you mean. All individuals have the obligation to defend and prosecute violations of the Rights of others. However, we have the pragmatic and realistic problem that individual interpretation of Rights and guilt and somebody’s personal interpretation of what is their Right can be far afield of what the collective has deemed a Right; and their actions can violate actual Rights of others in their attempt to protect or prosecute imaginary Rights of their own or others. That problem has been known for thousands of years.
The solution to that problem (often flawed in implementation) is to have experts paid to understand the laws and Rights the collective agrees upon, and to write the laws and Rights in plain language that people can understand so they can plan accordingly, and those experts are supposed to be the police, detectives, courts and lawyers (both prosecutors and defenders) of the Justice system. They have to be paid, and by virtue of the collective agreement to have a justice system, the collective is obligated to pay for the justice system.
That presents another problem, in that to be “justice” it must be available to all without restriction or requirement to pay, so taxation pays for that, and taxation is rent and profit-sharing that pays for, among other things, this bit of infrastructure that helps protect your Rights and prosecute violations of your Rights.
DavidM: I know you do not believe in God, so in your worldview, the right cannot come from God.
I do not believe in Rights from God. But I can and do believe some Rights are self-evident. I do not feel logically compelled to define them as coming from anywhere or being granted by any entity, they are just obvious. One plus One equals Two is not true because God says so, or anybody says so, to me that claim is self-evidently true.
Tony,
I have no issue with any of that statement. In fact, it mirrors much of my own basic thought on not just socialization of health care insurance but what should be the guiding principles behind advocating socializing any market segment or line of business.
“Very true. I have always embraced this concept.”
Knowing the path and walking the path are not the same thing.
“The similarity between fascism and socialism is the focus on the collective rather than the individual.”
Nope. Fascism (particularly Italian Fascism) focuses on the state and the oligarchy that supports it or simply the oligarchy (corporatism). Socialism focuses on maximizing benefit for all of society as individuals unless it is, again, planned state socialism (which – again – is not what anyone here is advocating).
You also ignore that all forms of government are collective action unless they are anarchistic (and anarchy is the preferred form of fools).
You seemingly have a problem divorcing a tool from what ends to which it used as well. As previously pointed out, common elements do not mean things are equivalences. Hammers and screwdrivers both have handles and heads and while they are both tools they are not the same tool, do not produce the same work and may be used for more than one purpose. The same goes with forms of governance and economic models. The tools are less important than the goal or end product.
You also work from a superficial understanding of terminology, David, and when the actual terminology doesn’t conform to your wishes you have no issue at making up or conflating terms to suit your argument. For example: “In contrast, socialism claims a class struggle exists,” is both simplistic and incorrect. “Class struggle” is a Marxist term. In broader socialist terms, the oligarchical concentration of resources minimizes the potential utilization of resources and technology from yielding the maximum benefit for all of society and this is something to be avoided when it negatively impacts greater society. Again, Marxism is not socialism. It’s Communism – the nadir of planned state economics combined with totalitarian authoritarianism. It has a different name for a reason. It is just as failed and extremist a model as the laissez-faire anarchistic economic oligarchical tyranny that big “L” libertarianism invites. Tyranny in service of the state or tyranny in service of monied corporate interests is still tyranny. Your inability to see this relates to your inability to see that your rights end where the rights of others begin but you’re okay with economic tyranny because you think you might have a chance to do whatever you please and screw everyone else so long as it makes money. You keep trying to paint others as fascists when they are socialists in part to detract from the fact that your positions are actually closer to corporatism and therefor fascism than any socialist position.
You also use a lot of words to either 1) say nothing substantive or 2) repeat yourself as if repetition will make you right when you are not. Argument by verbosity isn’t effective and repetition of wrong data is simply the tool of propagandists or their dupes.
Not only do your arguments fail because you simply don’t know what you are talking about, they are poorly executed as well.
DavidM: On Fascism, I think it illogical to think a totalitarian government with a profit motive can possibly be interested in the will of the people.
I do not claim to know everything, but in virtually every case you claim I am either ignorant or uninformed I am not; I reject the claims of Fascism as a deceptive marketing attempt at defrauding the public into backing their own exploitation. I think of Communism the same way.
I will not answer that in detail, it isn’t worthy of consideration, and your argument does not move me; Socialism is not Fascism in any sense. There may be some extent in which Socialism is faked by Fascists intent on exploitation, there may be some extent to which true Socialism gets hijacked by Fascists, but Socialism is not Fascism, the goals and implementation, as you have noted, are complete opposites.
Gene: And of course, I think we have long been at a point justifying socialized medicine.
An example where I think the market is doing alright, with regulation, is in non-health insurance. Life insurance, insurance against loss by fire, theft, accident or liability seem fairly competitive to me, and I have not studied the industry but in situations I have hearsay on, they seem to pay and (at least as far as my own business and personal interests are concerned) seem to be competitively priced and responsive to claims. I have seen a life insurance claim within my family paid in full, with sympathy and zero argument within a few weeks; including an offer for emergency funds to cover any bills due during processing.
So I wouldn’t socialize all insurance of any kind. We might reduce the premium, maybe even ten percent, but my point in socialization isn’t to make everything as cheap as humanly possible for citizens, it is to prevent abuse, exploitation, fraud and monopolistic pricing. So to me the question becomes are people abused or exploited by the insurance companies?
Health insurance, yes. Life insurance, or car liability insurance? I’d need some objective evidence and statistics to prove that those markets are abusive and exploitive, that people are being ripped off, defrauded, or otherwise done real harm by collusions or monopolistic pricing, that the product is either a societal necessity or a natural monopoly, and that status is being leveraged to accomplish exploitations.
Which I hope is not too vague a standard. Feel free to clarify with your own thoughts.
Nevermind… it posted.
A long reply to Tony got snagged by WordPress. Can a guest moderator free it please? Thank you.
Skip: Should what be lawful contract? The Rights? I am not sure what “it” is.
Is the Constitution a lawful contract?
Laws should be written, and specific enough that law breaking can be determined objectively, and no law should ever be passed that includes immunity from the law for lawmakers. (I would not include a right of any lawmaker, like a Governor or President, to pardon anybody.)
Laws should apply equally to all individuals; including Presidents and Governors.
But I am not sure what you mean by “lawful contract.” Under what Law? I recognize no Law superior to that agreed upon by a stable majority of the people.
By “stable” majority, I mean enough over 50% so that it is highly unlikely 50% will want it repealed within, say, the term of a Senator, six years. I would require the same threshold over 50% required for repeal.
And even then, I might use 52% for laws of low impact and progressively higher margins of certainty (as the Founders did) for laws of higher impact, up to 70% for a Constitutional Amendment, in my view, which in my view, should be ratified by vote of the population, not the States.
And I see no value in an actual contract being signed instead of using the idea of a social compact. We are born into a society that has rules, we are raised in it, we have Rights in it. They are not stripped from us upon adulthood. As long as we have the right to leave the jurisdiction of the country in order to no longer be subject to the law (without having broken any), we are free to abandon the social compact of our birth and make our way somewhere else, under different rules.
If there is no “somewhere else” suitable, too bad, the human collectives of the world do not owe us existence on our own selfish terms, or protection of our contracts without any return obligation to others on our part.
In this country, and I believe in most countries in the world, citizens are free to leave at will. Sail or raft the open ocean that belongs to nobody, or wander the jungles and wilderness areas of the world that have no government law enforcement at all. (And both of those may be in the jurisdiction of International Law.)
The social compact is the default state; being an adult citizen within its jurisdiction obligates one to its terms and grants one its protections. Being a child, one’s parents or guardians determine assent; reaching the age of majority (and mental competence) I believe one should be able to freely leave the geographical jurisdiction of our collective and meet their own fate. We cannot control how they will be treated there by other individuals or other collectives (Governments), so they shoulder the entirety of such risk, but we should not prevent them from doing so.
Tony,
Then we are closer in position than I realized.