Tom Cotton, John Lewis, and Historical Truth

In all the flap over Senator Tom Cotton’s assertion that  American slavery was “a necessary evil,” I think it useful to revisit conservative columnist Michael Gerson’s discussion from September 2019.  But first, a few additional comments, which are particularly pertinent today, as so much of the nation honors the life of Congressman John Lewis.

The principles set forth in the Declaration of Independence were, in fact, revolutionary – a giant leap in a world in which the norm was that government was imposed on the people and that the people generally had no rights that governments were bound to respect. 

Cotton’s fall-back argument – that the Founders consciously set up a system that would allow for eventual dismantling of slavery -- is simply wrong, historically.  In fact, the Constitution is rife with provisions intended to enhance the power of slave-holding states so that they could hang on to slavery. The history of the first 84 years of the American republic was a struggle over slavery, filled with compromises to keep the Union from splitting apart, but which ultimately (and perhaps inevitably) resulted in the Civil War.  So much for Cotton’s assertion that the Founders set up a glide-path to abolition.

In 1863, in his Gettysburg Address, Abraham Lincoln refined the argument as to how our founding principles should be understood, declaring that the Civil War would determine whether “government of the people, by the people, and for the people” would “perish from the Earth.”  And struggle of the century that followed centered on the question of whether the outcome of the Civil War meant that “the people” meant all people, not just White people.  More often than not, the answer was “not so much.”  The forces of White supremacy lost the War, but won most of the “peace.”  Tom Cotton cannot assert the contrary unless he willfully ignores the historical record.

John Lewis’s passing reminds us that it was not until exactly a century after the close of the Civil War did Congress finally act to assure that the 15^th Amendment to the Constitution which was the post-Civil War effort to guarantee the right to vote regardless of race.  And then only because, in part, John Lewis was nearly beaten to death.

Now, 55 years later, not only has progress been stymied, but the President of the United States and his minions in the Congress (including Senator Cotton) have taken the lead in rolling things back – including efforts to obstruct Black people from voting. 

Politicians who, today, pay lip service to the greatness of John Lewis but oppose the enactment of the John Lewis Voting Rights Act, which would repair the damage to the original Voting Rights Act done by the Supreme Court's decision in Shelby County v. Holder are hypocrites.

Here is Michael Gerson’s September 2019 column:

Conservatives’ reaction to the ‘1619 Project’ is disappointing — and instructive

Opinion by 

Michael Gerson

Columnist

September 9, 2019 at 5:20 p.m. EDT

Conservative reaction to the New York Times’ “1619 Project” — an attempt to tell the story of slavery and its lasting effect on American political, economic and social structures — has been both disappointing and instructive.

I am not referring here to thinkers (the term is employed loosely) who consciously embrace a philosophy of white supremacy. Though resurgent and repellent, they do not constitute the mainstream of conservative thinking on race.

I am thinking instead of conservative writers who argue that the 1619 Project is a prime example of leftist ideological overreach — that its (mainly African American) authors see the country entirely through the prism of its sins and intend to “delegitimize” the American experiment. In making this case, some conservatives have offered excuses — or at least mitigations — for the moral failures of the Founders on matters of race. The institution of slavery, we are assured, was historically ubiquitous. The global slave trade, we are reminded, involved not just Americans but Arabs and black Africans. Other countries, we are told, took more slaves than America, treated them worse and liberated them later.

The attempt here is to defend the honor of the American experiment by denying the uniqueness of its hypocrisy on slavery. In one way or another, all these arguments ask us to consider the inadequacies of the Founders within the context of their times.

But to deny the uniqueness of American guilt on slavery is also to deny the uniqueness of its aspirations. Americans are required to have ambiguous feelings about many of the country’s Founders precisely because of the moral ideals the Founders engraved in American life. The height of their ambitions is also the measure of their hypocrisy. It should unsettle us that the author of the Declaration of Independence built a way of life entirely dependent on human bondage.

This leads to an unavoidably complex form of patriotism. We properly venerate not the Founders, but the standards they raised and often failed to meet. This is their primary achievement: They put into place an ideological structure that harshly judged their own practice and drove American democracy to achievements beyond the limits of their vision.

One thing we cannot do is excuse the Founders according to the standards of their time. In the mid to late 18th century, there was plenty of compelling moral thinking on the issue of slavery.

In 1759, Quaker Anthony Benezet wrote “Observations on the Enslaving, Importing and Purchasing of Negroes,” which presented eyewitness accounts of the cruelties of the slave trade. Benezet called slavery “inconsistent with the gospel of Christ, contrary to natural justice and the common feelings of humanity, and productive of infinite calamities to many thousand families, nay to many nations, and consequently offensive to God the father of all mankind.”

In 1776, the year independence was declared, Presbyterian pastor Samuel Hopkins wrote “A Dialogue Concerning the Slavery of the Africans,” which he dedicated to the Continental Congress. Hopkins was alert to the incongruity of the American cause, urging his readers to “behold the sons of liberty oppressing and tyrannizing over many thousands of poor blacks who have as good a claim to liberty as themselves.”

In 1778, another minister, Jacob Green, preached a fast-day sermon referring to slavery as a “most cruel, inhuman, unnatural sin.” He also pointed out the discrediting inconsistency of a country that was dedicated to liberty and yet tolerant of slavery: “What foreign nation can believe that we who so loudly complain of Britain’s attempts to oppress and enslave us, are, at the same time, voluntarily holding multitudes of fellow creatures in abject slavery . . . ?”

America’s Founders stand accused by the best, most humane standards of their own time. When Jefferson wrote about natural rights on his mountaintop prison for black people, many of his contemporaries knew he was, on this issue, a total hypocrite.

America’s story is not one of initial purity and eventual decay. It is the story of a radical principle — the principle of human equality — introduced into a deeply unjust society. That principle was carried forward by oppressed people who understood it better than many of the nation’s Founders. Denied the blessings of liberty, African Americans became the instruments by which the promise of liberty was broadly achieved. The victims of America’s moral blindness became carriers of the American ideal.

This story is not simple to tell. But it is miraculous in its own way. And it is good reason to be proud of America.

https://www.washingtonpost.com/opinions/conservatives-reaction-to-the-1619-project-is-disappointing--and-instructive/2019/09/09/2acfad58-d33c-11e9-9610-fb56c5522e1c_story.html

The Danger of Moving to a Nine-District Member Montgomery County Council

        Last winter, I testified before the Montgomery County Charter Review Commission in opposition to a proposal to alter the structure of the County Council, changing it from a five-district, four at-large arrangement to a nine-district arrangement.  The text of my presentation is below.
         My main point might appear to be a very "inside baseball" argument, but it is one that I think makes expanding to nine district seats extremely unwise and potentially dangerous.  
         Background:  The Ficker Amendment was a referendum-established amendment to the County Charter in 2008, which bans an increase in the property tax rate over the rate of inflation, unless the Council unanimously agrees to the increase.  An emergency faced the County in 2016, and County Executive Leggett proposed a budget which required a greater-than-inflation-rate tax increase.  It was a heavy lift, but eventually all nine members of the Council, including the five district members, agreed with the increase, with good results for the County.  The debate centered entirely around the merits, and was not mired in parochial or partisan politics.  
          But with a nearly 100% increase in the number of districts, the likelihood that one member on the Council would be unconvinceable, thus thwarting the judgment of the representatives of an overwhelming majority of County voters, would increase significantly.  
          So moving to a nine district member Council, while attractive in some respects, could be fundamentally undemocratic in a fiscal emergency.  Whatever the merits of a nine-district Council, I believe they are outweighed as long as the Ficker Amendment -- which allows a single Council member to block needed action -- is still on the books.

******************************************************************

February 22, 2020

To:              County Charter Review Commission

From:          David S. Fishback, Olney MD

Re:              Proposal to alter the structure of the County                                   Council

I have lived nearly my entire adult life in Montgomery County, and have lived in Olney since 1986.

I believe it would be a big mistake to move to a nine District Council, eliminating the At-Large seats.

The advantage of the current five District/four At-Large system is that it is more likely to reflect majority sentiment in the County.  The four at-large members are responsible to the entire electorate; the five district members are responsible only to the people in their districts.  The more districts and the fewer at-large districts, the more likely we could get a Council that would not reflect majority views on significant policy matters.  I recognize that smaller districts might lead to more responsiveness with respect to constituent service and might yield a greater diversity of ideas in the course of Council deliberations.  But for the reason explained below, I think that that argument is far outweighed by the impact of the current requirement of the “Ficker Amendment."

Under the  "Ficker Amendment" to the Charter, property tax rates may not be increased beyond inflation unless the Council unanimously approves such an increase.  Several years ago, County Executive Leggett correctly concluded that such an increase was absolutely necessary for the County to continue to be the kind of place we want to live in. After considerable discussion, the Council unanimously voted to approve the necessary tax package.

But if the Council had been splintered into nine districts, it would have been much more difficult, if not impossible, to secure that unanimity.  With more, and smaller, districts, it would have been more likely that a single Council member would have vetoed the overwhelming majority of sentiment in the County. 

A better case could be made for more, smaller district seats if the "Ficker Amendment" had not been passed. Indeed, one could make an argument that the Amendment it might not have passed if the Council structure had then consisted of nine smaller districts.  But unless and until the "Ficker Amendment" is repealed, splintering the Council into smaller districts would be a ticking, fundamentally undemocratic time-bomb, which could result in tragic consequences for our community.

Thoughts on Peter Beinart's new assessment of the way forward in Israel/Palestine.

Peter Beinart has made quite a splash with his recent Op-Ed in the New York Times and longer essay in Jewish Currents, arguing that it is time to think in terms of a single, bi-national state in Israel/Palestine.    

My friend Rabbi Michael Feshbach (who accuses me of not knowing how to spell my own last name) posted on Facebook Yehuda Kurtzer's Tablet Magazine critique of Beinart's essay.  My comments were too long for a FB response, so I have place them here.  I think Kurtzer may make too much of the Yavne metaphor, a reference to the rabbinic surrender to the Roman destruction of the Second Temple and Jewish sovereignty in return for a safe place to study and develop principles for what became the Jewish Diaspora.  Beinart does not even mention Yavne in his New York Times Op-Ed and only discusses it in the eighth paragraph and at the very end of the Jewish Currents essay, where he suggests that the metaphor is apt in the sense that it was an "acknowledgement that a phase of Jewish history had run its course."  Beinart poses the question of whether a sovereign Jewish state is the ultimate goal, or whether the ultimate goal is a safe place for the Jewish people in our ancestral home, regardless of purely Jewish sovereignty. Kurtzer asserts that it must be the former.  Beinart concludes that it will have to be the latter, in large part because he sadly has determined, with much justification, that the former is no longer possible without our becoming the very sort of people we do not want to be. 

I tend to agree with the late analysis of the late writer Amos Oz, set forth in Rob Eshman's Forward article about Beinart essays:

 "In a 2015 speech to the Institute for National Security Studies, . . . Oz sounded the alarm [about the dangers of annexation], but with far more pessimism than Beinart. 'I think the idea of a bi-national state is a sad joke,' he said. 'You can’t expect Israelis and Palestinians after 100 years of blood, tears and calamity to jump into a double bed and begin the honeymoon.'” 

That is why Oz so strongly supported a two-state solution, as did Beinart until now. 

But events of recent years seem to have made such a solution impossible. While I understand and appreciate Beinart's view and wish it was a viable solution, I am extremely skeptical. But I am also aware that of the various scenarios, Beinart's newly-arrive-at-approach -- while a long shot -- may well be the most likely way that the Jewish people can survive in Israel and still keep their souls. 

Suggestion on how to think about Winston Churchill & Richard Montgomery -- and so many others who we currently commemorate.

A report on a petition to rename Winston Churchill High School in Potomac, Maryland, brings into further focus the considerable public discussion of the last few years of how we should deal with the memorialization of historical figures whose views and actions regarding slavery and race, and the related issues of European colonialism, clash with our current (and, I hope, more permanent) sensibilities on these issues. See, e.g., here and a related blog post here.


The simple response has often been this: Confederate memorials Out/Founding Fathers memorials In.  But there are other example of the dilemma, as well.  I wrote this five years ago, when the status of Woodrow Wilson was at issue (as it is, again), and I think this basic formulation of how we should approach each situation still makes sense.

It was one thing to be a bystander to the evil of governmental race discrimination, or even to being a willing beneficiary of the slave system (e.g., Washington, Jefferson, Madison). Such people's positive societal contributions may keep them out of permanent historical hell. But those, like Calhoun, who seized the opportunity to be enthusiastic apologists for and defenders of the slave system and made that the centerpiece of their public careers are beyond the pale. By affirmatively acting to role back what little progress had been made once slavery was abolished, Wilson probably put himself beyond the pale in the 20th Century. Racism was not THE centerpiece of Wilson's Administration, but it was not merely an incidental part, either. Woodrow Wilson lived simultaneously in two worlds at the time of his election to the Presidency in 1912: The polite Progressive Movement which focused on reining in the excesses of concentrated wealth centered in Wall Street; but also the only semi-reconstructed aristocratic South which was resentful of Yankee (Wall Street) control over the American economy. These worlds joined forces over their resentment of the J.P. Morgan's of America. Some good did come out of it, but the cost was a full reimplementation by the federal government of Southern Jim Crow policies. Wilson's 1912 election as the first post-Civil War Southern President was seen in the South as a triumph over the hated Yankees -- and Wilson governed accordingly, and not at all reluctantly. (A. Scott Berg's admiring 2013 biography of Wilson lays out the facts underlying this analysis, even though Berg himself seems to view Wilson's racist policies as a relatively minor flaw as compared to his Progressive achievements. After reading the book, I drew a different conclusion.)

How to apply this formulation is not always easy -- but debates over such applications can be useful.  Take the question of Richard Montgomery High School -- and, indeed, the name of our own county, which was also named after the aforementioned Revolutionary War general, who was killed during an incursion into Canada in 1775.  General Montgomery had been a career British officer who fell into disfavor in the British Establishment for being sympathetic to the colonists and them emigrated to New York; he rose to prominence in the early days of the Revolution when he was chosen to succeed Philip Schuyler (Alexander Hamilton's future father-in-law) in command of a large Continental Army force when Schuyler fell ill.  General Montgomery never set foot in what is now Montgomery County; some now wish to remove his name from the high school because because, two years before his death, he married a woman whose family owned enslaved people.  Specifically, his wife was the daughter of prominent New Yorker Robert Livingston, who owned owned enslaved people, and he then came into possession of such "property."  Indeed, General Montgomery's wife's uncle Philip was deeply involved in the international slave trade, although her father had a mixed record on slavery, not dissimilar to (but a bit more enlightened, in a relative sense, than) Jeffersons'. See
 here.  

Ulysses S. Grant also married into a slave owning family, and while he eventually freed the slave he eventually owned, his father-in-law was an unabashed supporter of slavery.

The point about Generals Montgomery and Grant is that their historical significance is pretty much unrelated to slavery.  And that, arguably, their contributions far outweighed the taint of slavery, which was a common part of our sinful past.  We could say the same about Washington and Jefferson, who were far more implicated in, and benefitted from, slavery.  We certainly cannot say the same about John C. Calhoun, Chief Justice Roger Taney (the Marylander who authored the Dred Scott decision), and all the Confederate generals who are commemorated. (There are virtually no public memorials to Confederate General James Longstreet, and there is a reason why:  After the Civil War, Longstreet affirmatively fought against White Supremacists who sought to suppress the formerly enslaved. See  So when, in order to send a signal that, as a practical matter, the South had not entirely lost the Civil War, White Supremacists began erecting statues lauded the general's "virtues", Longstreet was left out.)

While Woodrow Wilson presents what many would see as a tougher case (for the reasons set forth above, I believe he falls on the Confederate side of the ledger), Winston Churchill presents what may be an even tougher case.  Churchill embodied European colonialism, with all the exploitation and racist rationalizations that grew out of it.  One of his most significant quotes came in 1942, in the midst of the struggle against Hitler, when he said, "I have not become the King's First Minister to preside over the liquidation of the British Empire."  Churchill was a politician of his time, and but for his leadership of the United Kingdom during World War II, no one in the United States would even think of commemorating him.  But that is a huge BUT FOR. See   As much as any other individual in history, he legitimately symbolizes the destruction of the 20th Century Voldemort.

I hope that discussion in the Winston Churchill High School community (and in the County generally) will be an opportunity to work through and develop a deeper understanding of the flaws and virtues of members of the human race, and how they are dealt with in the public square.   

What the Supreme Court's Bostock decision means for the ACA -- and what the dissents signal for progress.

On the evening of June 12, the Kulanu Committee at our synagogue, Temple Emanuel of Kensington MD, conducted its annual Pride Service on Zoom.  Earlier that day, the Trump Administration announced that it had "finalized a rule that would remove nondiscrimination protections for LGBTQ people when it comes to health care and health insurance." 

When our Temple participants (including LGBTQ+ teens) met in advance of the service, everyone expressed the fear that this new Trump action could negatively impact their and others' ability to secure health care services.  My initial take on the matter was that I thought that Maryland state law would still protect them, as local and state policies had provided protection notwithstanding the Trump Administration's withdrawal of the Obama Gender Identity Guidelines for public schools in 2017 (see here), but I was not sure and said I would try to find out. 

BACKGROUND:  In 2016, the Obama Administration issued a rule making it clear that Section 1557 of the Affordable Care Act (ACA), which made it illegal to discriminate on the basis of a number of reasons, including "sex", applied to discrimination based on sexual orientation or gender identity.   (The ACA's non-discrimination provision incorporated the definitions from three other earlier statutes, including Title IX of the Education Amendments of 1972, which included "sex" as a basis upon which there could be no discrimination.  The Trump Executive Order asserted that the Obama Administration had unlawfully interpreted the term "sex" to extend to sexual orientation and gender identity, and thus its new Executive Order stated that the ACA's anti-discrimination provision did not apply to LGBTQ+ people.   

BOSTOCK DECISION FROM THE SUPREME COURT:  Three days later, on June 15, while I was trying to assemble the various Maryland laws, the United States Supreme Court issued its decision in Bostock v. Clayton County, Georgia, ruling 6-3 that Title VII of the Civil Rights Act of 1964, barring employment discrimination based on, among other things, "sex", covered sexual orientation and gender identity.  Because the decision was based entirely on the Court's understanding of the word "sex" as a matter of statutory construction, the impact of this decision on statutes using the same term -- like Title IX (and, by its incorporation into Section 1557 of the ACA) -- is plain.  All federal statutes barring discrimination based on "sex" encompass discrimination based on sexual orientation or gender identity. See, for example, here.

So it seems clear that the concerns expressed by our teens and their parents the evening of June 12 were satisfied by the Supreme Court's June 15 Bostock decision. 

(I subsequently determined that three Maryland laws, the Fairness for All Marylanders Act of 2014 and two statutes passed in the recently-completed session of the Maryland General Assembly (SB872/h8959 and SB738/HB1120 taken together provide all the anti-discrimination protections that the Obama ACA rules set forth, even if the Trump Executive Order was (which it is not) a legitimate re-interpretation of the ACA. (Thank you to Delegate Anne Kaiser and Metro DC PFLAG Co-Advocacy Chair for Maryland Mark Eckstein for tracking down the 2020 laws.)  So even if the Trump Administration continues, in the face of Bostock, to argue that the word "sex" in the ACA does not apply to sexual orientation and gender identity, state law protects people in Maryland.)  

POST-SCRIPT ON BOSTOCK:  In reading Bostock, I was particularly struck by what dissenting Justices Alito and Kavanaugh wrote about the struggles of LGBTQ+ people for fair treatment.  While taking the view that it was dispositive that Congress never intended in 1964 to cover sexual orientation and gender identity, these two extremely socially conservative justices wrote in terms that are sympathetic to the plight in which LGBTQ+ people have found themselves due to discrimination.

At p. 28 of his dissent, Justice Alito states that "[f]or most 21st-century Americans, it is painful to be reminded of the way our society once treated gays and lesbians, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time."  He then catalogues a long series of discriminatory laws as support for his legal analysis of what Congress intended in 1964, even as he suggests these laws might have been unjust.  At p. 54, he concludes as follows:  "The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is."  However crabbed Justice Alito's statutory analysis might be, his characterization of LGBTQ+ people's struggle is the opposite of the vitriol we are accustomed to hearing from right-wing culture warriors.

Likewise, the language from Justice Kavanaugh, at p. 2 of his dissenting opinion:  "Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court. The political branches are well aware of this issue. In 2007, the U. S. House of Representatives voted 235 to 184 to prohibit employment discrimination on the basis of sexual orientation. In 2013, the U. S. Senate voted 64 to 32 in favor of a similar ban. In 2019, the House again voted 236 to 173 to outlaw employment discrimination on the basis of sexual orientation. Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law. The policy arguments for amending Title VII are very weighty. The Court has previously stated, and I fully agree, that gay and lesbian Americans 'cannot be treated as social outcasts or as inferior in dignity and worth.' [emphasis added] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9). But we are judges, not Members of Congress."  

Justice Kavanaugh concludes his dissent (at p. 27) with this:  "Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result." (emphasis added)

Again, hardly the rhetoric of the bigoted right-wing. 

So what to make of the dissents?  One of the things we have learned is that the Supreme Court often is reflective of the zeitgeist of the nation.  Supreme Court Justices are often not immune from the changes in cultural norms.  When those whose personal and/or ideological discomfort with LGBTQ+ people begins to wane or reverse as they learn more about the human condition, then progress becomes not as difficult.  There is much to be depressed about with the current Supreme Court.  And we will be infinitely better off if the next crop of appointees to the Court are appointed by Joe Biden rather than Donald Trump. But we should not ignore the small glimmers of progress, even as we work for greater and swifter progress.