July 4, 2007

Wow isn’t this fun!

Fini.

“This is the way history should be told,” says PBS filmmaker Ken Burns of this collection of nearly 200 first-person accounts by everyday people. Ordinary Americans tells history as the average American actually lived it, covering 500 years of U.S. history from a bottom-up rather than a top-down perspective. Drawn from letters, diaries, autobiographical accounts, and interviews, these Americans’ stories are funny, moving, exasperating, often inspiring. They’re not just about what happened, but how real people felt about what happened.

Here you will meet former slave Olaudah Equiano, who described the passage from Africa to America; Cherokee leader Dragging Canoe, who prophesied his tribe’s removal from their lands; cobbler George Hewes, who participated in the Boston Tea Party; Iowa bride Catherine Haun, who crossed the Great Plains during the gold rush; African-American seamstress Elizabeth Keckley, who viewed Lincoln’s reactions to his son’s enlistment during the Civil War; Cheyenne tribeswoman Kate Bighead, who witnessed Custer’s last stand; sailor Stephen Bower Young, who was trapped in his ship during the bombing of Pearl Harbor; Japanese-American Mary Tsukamoto, who was interned during World War II; nine-year-old Sheyann Webb, who marched for civil rights at Selma; helicopter pilot Robert Mason, who flew rescue missions in Vietnam; United Farmworker Jessie Lopez de la Cruz, who organized her comrades in the fields; and many, many more.

The newly updated version of this bestseller moves into the twenty-first century with insights on Bosnia, the Starr grand jury, Oklahoma City, and the September 11th attacks through the eyes of people who participated in these historical events.

The Bill of Rights: A User’s Guide explores our Constitution’s first ten amendments and their resilience through time. This award-winning text includes the historical background of the amendments and the rights granted therein, along with a study of the Fourteenth Amendment.

Profiles and legal analyses of the Supreme Court cases that have interpreted and upheld these basic human rights are also featured, along with the stories of the ordinary people behind the cases. The book includes a foreword by Justice Ruth Bader Ginsburg. The Bill of Rights is a winner of the American Bar Association’s Silver Gavel Award.

The Words We Live By is designed to give Americans the balanced and accessible information they need to more fully understand the nation’s charter. It is a distilled overview of the historical background, legal analysis, and current controversies of the Constitution. Using the metaphor of the Constitution as a conversation, The Words We Live By is filled with quotes by Americans of wide-ranging views from all walks of life.

America’s conversation about liberty included women and men of all classes, races, and religions—enslaved and free. The slaves of Massachusetts petitioned for their “unalienable right to freedom” in 1777 with words echoing the Declaration of Independence. White men without property sought the right to vote. The Cherokee Nation, although deprived of its land, believed that American Indians should be protected under the Constitution. Women argued that they, too, were included in “We the People.”

The Words We Live By includes the voices of America’s founders and fanatics, of Supreme Court justices and civil rights workers. Among this cacophony are rock star Ted Nugent, first-grader Ruby Bridges, actor Charlton Heston, gay rights activist Michael Hardwick, ex-con Clarence Earl Gideon, and pro-life protester Norma McCorvey.

These stories prove that the Constitution is not self-enforcing and depends upon citizens for its support. As Judge Learned Hand emphasized during World War II: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”

The Supreme Court will hear oral argument this week on one of the more explosive questions before it: Whether public school teachers can lead students in the Pledge of Allegiance to a nation “under God.”

In the Newdow case the U.S. Court of Appeals for the 9th Circuit ruled that public school teachers within that circuit (comprising nine Western states) violate the First Amendment when they lead students — even those who are willing — in the pledge. The reason? The court said that teachers are endorsing religion, contrary to the Establishment Clause, when they lead the class in reciting the pledge’s words: “one nation, under God.” In a public school setting, the lower court held, nonbelieving children can be coerced by teachers’ actions in a way that adults are not.

The best solution to this problem — one that respects both the community’s desire to instill patriotism and the conscience of religious dissenters — is to end recitation not just of the words “under God” but of the entire Pledge of Allegiance. In its place would go a much better statement of our national values: the Preamble to the Constitution.

The preamble was written in 1787 by the nation’s founders. The pledge was written in 1892 by a socialist minister to honor Christopher Columbus in a children’s magazine. “Under God” wasn’t even in it — the phrase was added in 1954, after a campaign by the Knights of Columbus.

Why the preamble? Because it affirms the sovereignty of “we the people,” who strive for a “more perfect union” and thus “do ordain and establish this Constitution.” That last part is trickier than it seems. It unites citizens in an ongoing responsibility to uphold constitutional values, not just mouth loyalty oaths.

In the current debate about “under God,” it’s important to remember that the Pledge of Allegiance itself has a mottled history in this country. That’s not surprising in a nation where people take oaths seriously. When World War II was brewing in Europe, Jehovah’s Witnesses were the most disliked religious group in America because they opposed saying the Pledge of Allegiance to the flag.

What could it hurt, argued countless school boards and eight Supreme Court justices in a 1940 ruling, for schoolchildren to learn a lesson in patriotism? Jehovah’s Witnesses responded that swearing an oath to a flag was the equivalent of worshipping a graven image. They also noted the similarity of the flag salute, which at the time involved children pointing their outstretched right arms toward the flag, to the “Heil Hitler” salute of Nazi Germany. The Nazis were at that time persecuting Jehovah’s Witnesses for refusing to give that salute.

After the 1940 court decision on the pledge, Witnesses’ children could be denied the right to attend school, even if they stood respectfully and quietly during the pledge. The court’s ruling unleashed a wave of violence against Witnesses nationwide, with 335 attacks against 1,500 Witnesses in 1940 alone — including a castration in Nebraska.

Out of shame over the wave of religious violence it had triggered, the Supreme Court overturned itself only three years later, the fastest reversal in its history. Wrote Justice Robert Jackson, who was later to serve as a prosecutor in the Nuremberg trials: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.”

As amended in 1954, the Pledge of Allegiance makes a statement about God’s role in the republic that the framers of the Constitution omitted in 1787. True, the signature line of the Constitution does include the standard dating convention “in the year of our Lord,” but that hardly qualifies as an assertion equivalent to “one nation under God.” Despite pleas in the ratification debates to add such divine references to the Constitution, the framers believed these are the words we all can agree on:

“We the people, of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

In February our nation celebrates both African-American history month and the birthdays of the two presidents who most shaped the Constitution’s legacy on slavery. George Washington presided over the convention that created the Constitution’s initial compromise with slavery, and Abraham Lincoln — although reluctantly at first — realized that compromise was no longer possible.

Like most of the founders, Washington believed that slavery could only be abolished by the states, not the national government. So, along with 38 others, he signed his name to a document that counted a slave as three-fifths of a person. This provision actually hurt slaveholders, rather than helping them. For if a slave was deemed a whole person for representation purposes, as were women and children, who also could not vote, the power of the slaveholding South would have been even greater.

Washington decried slavery in theory, but like most of his social peers, did little practically to end it. He believed in gradual emancipation, and he refused to sell his slaves without their permission at a time when Virginia’s leading export was fast becoming not agriculture, but slaves. He was the only slaveholding president to free his slaves, although not until after his wife’s death.

Washington never believed the Constitution written in 1787 was without flaws, but he relied on future generations to correct those errors. As he wrote to Patrick Henry: “I wish the Constitution … had been made more perfect, but I sincerely believe it is the best that could be obtained at this time; and … a constitutional door is opened for amendment hereafter.” Oddly enough, the first constitutional amendment that Abraham Lincoln supported as president would not have abolished slavery, but rather enshrined it forever as an unamendable part of the Constitution. In his first inaugural address in 1861, Lincoln hoped to forestall violent conflict with seceding Southern states by announcing his acquiescence to the Corwin Amendment. This amendment would have forbidden Congress from ever interfering with any state’s domestic institutions, including slavery.

Had not the Confederates fired the first shot of the Civil War on Ft. Sumter, the 13th Amendment to the Constitution, which now bans slavery, might instead have protected it.

Lincoln’s support of the Corwin Amendment reflected his belief, along with Washington’s, that only the states had the power to end slavery within their borders. It took a catastrophic civil war before many Americans began to realize, along with their president, that a constitutional compromise with slavery was no longer acceptable. Lincoln’s legacy to his country was a 13th Amendment that made all Americans free.

But it did not make all Americans citizens. Lincoln himself was a slow
convert to civil rights and citizenship for freed African-Americans, and it
would take a 14th Amendment after Lincoln’s death to promise them equal protection of the laws.

There is another birthday in February that Americans should remember along with Lincoln’s and Washington’s. That birthday is of African-American abolitionist Frederick Douglass, although even he did not know the exact date.

A runaway slave and brilliant orator, Douglass had longed as a child to know his birthday. But as Douglass pointed out in his autobiography, one of the many humiliations of slavery was not being told your own birthday. He wrote: “By far the larger part of the slaves know as little of their ages as horses know theirs, and it is the wish of most masters within my knowledge to keep their slaves thus ignorant. … [They] deemed all such inquiries on the part of a slave improper and impertinent, and evidence of a restless spirit.”

It was Douglass, not Washington or Lincoln, who fully perceived the
Constitution as including all Americans, regardless of skin color. He wrote in 1857: “We, the people — not we, the white people — not we, the citizens, or the legal voters — not we, the privileged class, and excluding all other classes but we, the people, not we, the horses and cattle, but we the people — the men and women, the human inhabitants of the United States, do ordain and establish this Constitution.”

It’s Women’s History Month, but feminists can’t seem to get in a good word edgewise. I guess I’m part of the problem. In more than two decades as an active civil libertarian, I never contributed to a group solely focused on women’s rights until last fall. And then my dollars went to a group of Afghani women. Which is odd, because as an American woman I’ve certainly benefited from the increased educational and vocational options made possible by the women’s movement.

I consider myself a feminist, so why don’t I contribute to feminist causes at home? Perhaps one reason is that I haven’t tended to view abortion as the sine qua non of women’s rights. I’ll admit to feeling squeamish about the recent debate over late-term abortions. That’s where the fetus’ skull is collapsed before it is removed from the uterus — as opposed to being dismembered with vacuum suction in an earlier-stage abortion. But still, the “gross-out” factor is higher when you can actually see arms and legs and heads, and abortion opponents made sure we all knew the gory details.

Then I had a friend who needed an abortion well into her pregnancy, though she didn’t know it at the time. She was pregnant with a much-wanted second child. On what she thought was a routine sonogram in her second trimester, the doctor discovered that her baby had severe genetic defects causing massive amounts of fluid along the spinal cord, and would likely be stillborn. The doctor gave her the option of carrying the pregnancy to term, or having an abortion. At first my friend wanted to hope against hope, but then the strain got to be too much. She and her husband decided to go ahead with “the procedure.” No one thought her life was at risk.

But when the doctor began the surgery, he quickly discovered that the abnormally developing fetus had ruptured her uterus and would soon penetrate her intestine — which could easily have killed her. When she awoke from anesthesia, her doctor held her hand and said, “We’re lucky to have you.” I feel lucky to have her, too. Her life was saved because she got to make a tough decision alone with her doctor, without a state legislature playing chaperone.

That could be about to change, because Virginia is at the head of the line of states ready to outlaw late-term abortion — again. Two years ago the U.S. Supreme Court struck down a Nebraska law because its definition of late-term abortion was so broad it could have included any abortion at all, and the law failed to make sufficient exceptions to preserve the life and health of the mother. Neither does Virginia’s “medically induced infanticide” law, passed this month. It prohibits virtually all abortions of a “living fetus,” with an exception made if the woman will suffer “substantial and irreversible impairment of a major bodily function.” Only the governor’s signature stands between women like my friend and a death certificate.

Part of what’s going on here is the failed rhetoric of “choice.” If an abortion becomes just another lifestyle option in a me-oriented culture, then it’s hard not to be sympathetic for the fetus especially when you can count its fingers. Feminists warn us that women’s lives are at stake by waving coat hangers as symbols of a bygone age of illegal abortions. But what woke me up is that women’s lives are at risk now — and women I know.

I often wonder if my mother had the “choice” of abortion, would I be here? She was three months from a nursing degree when she found out she was pregnant with me. In 1958, women couldn’t be married in nursing school, much less pregnant. In those days, having a “choice” might have seemed liberating because women had none; today it’s trivializing because they have so many. What’s at stake is not a choice, but a woman’s life.

Karl Rove, President Bush’s chief political advisor, and Sen. Orrin G. Hatch (R-Utah) have called the Senate Judiciary Committee’s defeat of Judge Charles W. Pickering for a seat on the U.S. Court of Appeals a lynching.

“Lynching,” like “Holocaust,” is a word that should not be used gratuitously.

The word has special meaning to native Mississippians like Pickering and me. From 1882 to 1944, there were about 4,700 lynchings in the United States; Mississippi led the nation with 573. Of Mississippi’s victims, 93% were African American.

Here’s how my hometown paper, the Vicksburg Evening Post, described a 1904 lynching of Luther Holbert and his wife, accused of killing Holbert’s employer:

“When the two Negroes were captured, they were tied to trees and while the funeral pyres were being prepared, they were forced to suffer the most fiendish tortures. The blacks were forced to hold out their hands while one finger at a time was chopped off. The fingers were distributed as souvenirs. The ears of the murderers were cut off. Holbert was beaten severely, his skull was fractured and one of his eyes, knocked out with a stick, hung by a shred from the socket…

“The most excruciating form of punishment consisted in the use of a large corkscrew in the hands of some of the mob. This instrument was bored into the flesh of the man and woman, in the arms, legs and body, and then pulled out, the spirals tearing out big pieces of raw, quivering flesh every time it was withdrawn.”

Future Supreme Court Justice Clarence Thomas started us down this path of gratuitous use of the word lynching when he called the sexual harassment accusations of law professor Anita Hill “a high- tech lynching.” But the proper word for citizens airing their concerns about judicial nominees who will have lifetime jobs is not lynching but democracy.

To understand the real meaning of lynching, get a copy of the 2000 book, “Without Sanctuary: Lynching Photography in America.” People once attended lynchings as entertainment and sent their relatives picture postcards of the events. One of the most compelling photos is of a 1930 double lynching in Indiana. There’s a young couple laughing in the foreground and a man with a Hitler-style mustache pointing at the swinging bodies. A lock of the victim’s hair was framed along with the photograph.

Part of the concern over Pickering’s nomination was his history on racial issues. Opponents accused him of lying under oath about his connection to Mississippi’s infamous Sovereignty Commission, which writer Willie Morris referred to as “a sort of boondocks Gestapo.” Supporters — including a local leader of the National Assn. for the Advancement of Colored People — pointed to Pickering’s testimony against the Ku Klux Klan in a murder trial, which cost him reelection as a prosecutor. These were legitimate questions that deserved a full hearing, which is why the Constitution gives the Senate the power to approve judicial nominations.

I would be the last person to say a racist can’t be rehabilitated. When my grade school was integrated in 1970, I was one of the most racist 12-year-olds you could imagine. I made it clear to my black classmates that they were unwelcome and inferior. Fortunately, they didn’t listen.

Much was made in the press of Pickering’s role on the board of the Institute for Racial Reconciliation at the University of Mississippi, my alma mater. An essential part of racial reconciliation is coming to terms with the brutality of slavery and the state-sponsored terrorism inflicted on African Americans for at least a century afterward. This does not mean we should live in the past, but we can’t whitewash it either. Pickering should be the first to admit that he was in no way “lynched.” It’s important to remember what a real lynching is.

It’s terrorism central here in Alexandria, Va. The small town’s detention center is now home to both Zacarias Moussaoui, the French citizen and potential 20th hijacker accused of conspiring to kill Americans in the Sept. 11 attacks, and John Walker Lindh, the American Taliban charged with conspiring to kill Americans in Afghanistan. I’ll admit to being a little extra scared when I drive by the jail, a high-rise red brick building just a couple of miles from my home. But Sheriff James H. Dunning isn’t worried. “We’ve never had an escape or suicide in 15 years,” he says. Dunning has had other high-profile prisoners, like FBI superspy Robert Hanssen, but none with whom the entire United States has been at war.

How did two notorious terrorists wind up in a historic little burg that still has an official town crier? Two reasons: The jail is right across the street from the federal district courthouse, and Virginia juries are conservative and fond of the death penalty. Not to mention that, since the Pentagon is in their front yard, most Northern Virginians take the terrorist attacks personally.

John Walker Lindh is not being charged with a capital offense, nor with the crime most Americans think he’s guilty of — treason. That’s because the Constitution is very specific about how the government must prove treason; in fact, it’s the only crime defined in the Constitution. The framers were all too aware of how easily treason could be used to punish political opponents, and they wanted to make sure that such a serious charge would not be made lightly. Therefore, according to Article III: “Treason against the United States shall consist only of levying war against them, or in adhering to their enemies, giving them aid and comfort.” Furthermore, the standard of proof for such acts is also high: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

These provisions create problems for Lindh’s prosecutors. As part of the Taliban’s fighting force, Lindh was already serving on the front lines against the Northern Alliance before the United States began bombing Afghanistan in October 2001. When Lindh’s unit surrendered to the alliance in November, he was ultimately questioned by CIA agent Johnny Michael Spann, on a videotape that has been replayed around the world. In the prison uprising that followed, Lindh was shot and Spann was killed, the first American fatality by hostile forces in Afghanistan. Yet thus far prosecutors have not produced two witnesses who actually saw Lindh fire upon U.S. troops or give aid to the enemy. At a news conference on Feb. 5, the U.S. attorney prosecuting Lindh left open the possibility of adding a treason charge. But conspiracy, of which Lindh is accused, is not enough to prove treason. That principle was established in an 1807 ruling by Chief Justice John Marshall, sitting as a trial judge in the case of Aaron Burr. A former vice president, Burr was tried for plotting to foment rebellion in lands west of the Mississippi. Burr was acquitted of treason because Chief Justice Marshall held that, under the Constitution, two witnesses must testify that Burr was actually involved in levying war against the United States, not merely a conspiracy to levy war.

Because of these evidentiary constraints for treason, the government has prosecuted disloyal citizens on other grounds. Julius and Ethel Rosenberg, for example, were executed in 1953 for violating the Espionage Act, which made it illegal to transmit unauthorized information on national defense.

Spann’s mother said in a press conference on Feb. 13 that Lindh “is a traitor because of the way he lived.” Not according to the Constitution, which says that treason must be witnessed, not inferred. The framers had suffered the consequences of loosely defined treason, when merely imagining the king’s death would suffice, and they set a higher standard for the American republic. You can say Lindh is unpatriotic, you can say he’s stupid, but you can’t say he’s a traitor. Not unless you have two witnesses.

So it begins again. That age-old struggle between liberty and security has never really left us, but in peace the stakes are lower. Now we ask anew the same questions previous generations have answered: How much freedom can we survive? My husband works at the Pentagon, so the question is not hypothetical for me.

It has been easy to look back, from safety, at the mistaken choices of another time. Americans today would not allow the government to jail those who disagree with its policies, or lock their fellow citizens in concentration camps—would we? But when more lives are lost, will we care about the liberties we once had?

Congress considered these questions when it passed legislation last week expanding the government’s powers to investigate terrorism. The danger is that, in times of national crisis, “the pent-up agenda of law enforcement comes forth,” according to professor Cynthia Ward of William and Mary Law School. Such proposals may not necessarily be the best ways to fight terrorism. She also warns that not every gain for law enforcement is a loss for civil rights.

Still, based on our nation’s history, Congress should act carefully when the executive branch asks for more power during wartime. As the Supreme Court ruled in a case involving the trial of civilians in military courts during the Civil War: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented… than that any of its provisions can be suspended during any of the great exigencies of government… The theory of necessity upon which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.”

Of course, that decision was issued in 1866, after the Court knew which side had won. Civilians were also tried in military courts as part of martial law in Hawaii after Pearl Harbor, and the Supreme Court once again ruled that the practice was unconstitutional—but in 1946. The Court has been less likely to second-guess Congress or the president while hostilities were continuing.

Chief Justice William Rehnquist has an eerie ability to write historical books that presage a national crisis. His book on impeachments appeared only a few years before the downfall of President Clinton, and in 1998 he published a book about civil liberties in wartime entitled All the Laws but One. In it, Rehnquist quotes Abraham Lincoln, who—as the Constitution allows, though probably not to the president—suspended the writ of habeas corpus, a protection against arbitrary arrest. Lincoln asked Congress in 1861: “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Rehnquist repeats a Roman adage: Inter arma silent leges. During war, the law is silent. As Rehnquist points out, the president is likely to act to save the country during wartime and let the Supreme Court sort out the constitutionality afterward. In the words of Francis Biddle, FDR’s attorney general who opposed the internment of Japanese-Americans: “The Constitution has not greatly bothered any wartime president.”

Our war is just beginning, as President Bush continually reminds us. At the outset, it has been heartening to discover that most Americans do not believe rounding up Muslims will make us safer. Perhaps we’ve learned something in 60 years. But if more airplanes fall from the sky, if smallpox empties our cities as it decimated Native Americans 500 years ago, will we ask the president if what he did was unconstitutional? I’d like to think so, even if the query comes years later, because it’s the only question that makes us American.