Sunday, June 28, 2015

One heck of a week

If you think and believe as I do, the past seven days have been a blur of excitement and of wishes fulfilled.

On Monday, the tide turned rather suddenly against the militantly defended but racist "Confederate flag"--the battle flag of the Army of Northern Virginia, the design of which inspired various flags used by the Confederate States of America.  Regular readers of this blog know that I am very much against that cause, against the reverence many people hold for the Confederacy, and against the use of that flag in public spaces.

(I do not understand how people can call themselves Americans while expressing support for an armed uprising against the United States in defense of slavery as an institution.)

Then, on Thursday, a 6-3 majority of the Supreme Court upheld those portions of the Affordable Care Act relating to subsidies for health insurance in those states that did not set up their own exchanges under the ACA.  This really should not have been a close question.  Only the most partisan of partisan hacks supported the notion that Congress intended to restrict the subsidies to those who purchased insurance from state-based exchanges, and not to those who purchased from the federal exchanges set up where states declined to do so.

But the real feather in the liberal cap came on Friday, when the Supreme Court, 5-4, held that there is a constitutional right to marry and that states could not deny that right to same-sex couples.  Justice Anthony Kennedy wrote a stirring opinion for the Court, which I am not ashamed to admit brought a tear to my eye at several points.  One passage that I found particularly impressive was the following:

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises,and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
That paragraph is beautiful not just for its plain, forceful defense of equality, but also for the subtle but stinging rebuke it delivers to those who have argued that majority rule trumps all.

It doesn't, of course.  It never has.  Rights are not subject to the vagaries of the majority.  Rights belong to all of us.  (Chief Justice Roberts, in his dissent, took time to argue that the abrupt cutoff in the argument about marriage equality, and about equal rights for sexual minorities generally, deprived those minorities of the benefits of convincing the majority of the correctness of their position.  What the Chief Justice doesn't seem to understand, or pretends not to understand, is that the nature of rights is such that no one ought to be forced to convince the majority of their existence.  He is also wrong on the facts; it's the Court, not the public, that's playing catch-up to the other.  Wide majorities now approve of marriage equality--a much wider majority than can be found in the Court's decision.)

I cannot remember a week that was so good for those who share my point of view.  When Barack Obama was first elected, that was close.  But this was a better week.

I would like to believe that this signals a turning point in our discourse, where the influence of the Teabaggers begins its long slouch toward a nadir of irrelevance.  But I am reminded of the story of the great Persian king who brought together a council of wise men and charged them to find a way to bring him joy when he was sad.  The wise men conferred, and a ring was produced and inscribed with the legend, "This too shall pass."  The king found that this solution was doubly fruitful.  In tough times, he could look at his ring and be reminded that his troubles would soon pass.  But in good times, he could look at his ring and be reminded that joy will eventualy give way to sorrow in one form or another.

As good as things are right now, these, too, will pass.  And for that reason we must never stop pushing for the good and right things we support.  There is much work to be done.

The Roman poet Quinius Horatius Flaccus, known as Horace, who lived during the time of Caesar Augustus, wrote a beautiful ode, the title of which is usually rendered "The Golden Mean"--a reference to moderation in all things.  A modern translation* by A.S. Kline appears below:

* - Used by permission.

You’ll live more virtuously, my Murena,
by not setting out to sea, while you’re in dread
of the storm, or hugging fatal shores
too closely, either.

Whoever takes delight in the golden mean,
safely avoids the squalor of a shabby house,
and, soberly, avoids the regal palace
that incites envy.

The tall pine’s more often shaken by the wind,
and it’s a high tower that falls with a louder
crash, while the mountainous summits are places
where lightning strikes.

The heart that is well prepared for any fate
hopes in adversity, fears prosperity.
Though Jupiter brings us all the unlovely
winters: he also

takes them away again. If there’s trouble now
it won’t always be so: sometimes Apollo
rouses the sleeping Muse with his lyre, when he’s
not flexing his bow.

Appear brave and resolute in difficult
times: and yet be wise and take in all your sails
when they’re swollen by too powerful
a following wind.
So, let's don't get ahead of ourselves.  It was a great week.  But, to quote another symbol of the Confederacy, "After all, tomorrow is another day."

Monday, June 15, 2015

The Great Charter

Nobody tell Jason Rapert, but the birthday of the actual foundation of American jurisprudence is today.

Magna Carta, the Great Charter, was signed by King John on this day 800 years ago.

I'm reminded of a great joke I heard a number of years ago.  An American, eager to see the sights of London but not quite understanding the history, is on a tour of the Sir John Ritblat Gallery at the British Library.  Upon entering the Magna Carta room, where one of the four extant copies of the original is on display, a young boy asks the guide, "When was the Magna Carta signed?"  The guide replies, "1215."  The American looks at his watch, sees that it's 12:30, and says, "Oh, damn, we've just missed it."

In the 13th century, feudal England was engulfed in a low-grade civil war.  John, the unpopular king, was struggling to hold onto power.  A decade before, he had lost his ancestral lands in France, and he had spent most of his time and money until 1214 on war in France to try to regain them.  The defeat of John's allies at the Battle of Bouvines was disastrous; forced to withdraw from France and pay reparations to King Philip II of France, John returned to England to find his vassals restless and mounting an armed resistance to his further rule.

At this time, there were conflicting views about the proper conduct of government.  Some believed in the divine right of kings to rule as they pleased, by vis et voluntas, or "force and will."  Others recognized the divine right of kings but contended that kings were restrained by custom and tradition.  John's recorded predecessors tended to fall into the second camp, valuing consistency and tradition over unquestioned authority.  John differed, however, perhaps being motivated by external considerations.  He imposed high taxes at will and used force where necessary to achieve his goals.

The barons--landed nobles who owed allegiance to the king but who controlled their own areas--became fed up with John's misrule, renounced their allegiance to the king, and began marching on London.  Seeking to avoid all-out war, Stephen Langton, the Archbishop of Canterbury worked to coalesce the barons' complaints for presentation to the king and brought the two sides together for peace talks in June 1215.  For ten days, Langton mediated the dispute at Runnymede, a meadow on the side of the Thames near Windsor Castle.  On June 10, the barons presented a list of demands; under considerable pressure, John acceded to most of them and on June 15--figuratively and perhaps even literally at the point of a sword, the king signed Magna Carta.  Four days later, the barons re-pledged their fealty to the king, and war was averted.

The document itself is not apparently sweeping in its scope; it is confined to the everyday pragmatic concerns of the barons, as necessary to make peace.  And it is remarkable for its lack of longevity; three months later, with the backing of the Pope, John renounced the document, and the barons repudiated it.  The simmering civil war heated up.  In October, John died, leaving his nine-year-old son, Henry III, as the titular king as England fell to rule by regents.

But in fits and starts, the principles set forth in the original document, with some modifications, were re-instituted in subsequent charters in 1216, 1217, and 1225.  Those principles, including protection of the Church, the right to habeas corpus, limitations on taxation, the right to speedy justice, and the necessity of the consent of the governed, have persisted through the history of Anglo-American jurisprudence, and they are the embedded foundation of justice in our society and in all free societies in the world today.