On Misreading the Constitution?

Frankly, Scarlett, I don’t give a damn (about the original intent of the founders). They lived in their time, we live in ours and the times they have a changed. They established a government, they did not write Holy Scripture.

In fact, I’m convinced that there is no original intent. If by the founders we mean those bewigged eighteenth century gentlemen in short pants and high stockings who wrote the Declaration of Independence and the Constitution, let’s face it, the former also gave us the Articles of Confederation which was a compact of thirteen sovereign states (as in State of Israel, an independent nation) unified in fighting Britain but in hardly anything else, and then when that wasn’t working too well, some of them met in secret session to create the Constitution. So what was the original intent of that group? Hard to say. Some left mid-session in anger at what was going on; some refused to sign the Constitution because it didn’t say what they thought it should; others agreed with Ben Franklin who said, in effect, well, it’s not what anybody wants, but it’s the best we can do, so let’s sign the thing, hope for the best, and go home.

Immediately it was realized that the Constitution even with all its compromises wasn’t quite right so amendments were proposed by James Madison, ten of which were ratified very quickly, and then an eleventh and then a twelfth to resolve problems that none of the founders in their infinite wisdom had anticipated.

And yet, there are some today who seem to think that they know the Original Intent and that it is good.

Which brings me to Thomas J. Tobin, the Roman Catholic bishop of Rhode Island. Writing in The Providence Journal on January 12 he throws down the gauntlet to Governor Chafee who didn’t have a prayer service before his inauguration and who had the temerity to declare that Rhode Island was a secular state. “By now,” the bishop writes, “you should be aware that the exact phrase ‘separation of church and state’ isn’t found anywhere in our nation’s Constitution but rather was a principle that evolved later on…to protect religion from the interference of the state. It was never intended to remove every spiritual aspiration, prayerful utterance or reference to God from public life.” He then backs this up by quoting a Catholic archbishop, a pope, and quotations from Madison and Washington.

As to no mention of separation of church and state in the Constitution, the bishop is correct. There is also no mention of toleration of slavery (or even the word “slavery”) but there was slavery. There is no mention of judicial review, but there is judicial review. There is no mention of the air force, and yet the President is commander-in-chief of that as well as the army and navy which are mentioned. If we only look at what the founders said we’d only count three of every five black people every census. The Constitution was not written by divinely inspired men but by politicians. I’ll spare the bishop Thomas Jefferson’s vituperative remarks about Christianity and priests but will recommend that he look at Brooke Allen’s “Moral Minority” which demonstrates with ease that the founders were anything but religious folk and that they wanted as little to do with religion as possible.

The bishop also contends, rightly, that religious leaders have “every right, indeed the duty, to speak out on public issues. If we fail to do so, we’re neglecting our role as teachers, preachers and prophets.” Prophets? The age of prophesy is still with us? OK, let’s just chalk that off to hyperbole and agree that yes, religious leaders as citizens have a right to express their views. But do they have the right to threaten legislators with excommunication or denial of the sacraments to those of their faith who disagree with the hierarchy’s views? Archbishop Raymond Burke of St. Louis publicly stated that he would deny John Kerry communion because of his views on abortion and Archbishop Sean O’Malley of Boston, told Catholic elected officials who are pro-abortion that they should not be receiving communion and that they should refrain from taking part in the Christian sacrament on their own. This goes beyond writing a letter to the paper or seeking an interview to express differing views. Closer to home Bishop Tobin forbade Patrick Kennedy from receiving communion because of his advocacy of abortion rights. That’s what the founders had in mind? I’m thinking not. And if it is, I refer you to my first sentence.

On Russ Feingold

You remember Jesus, of course. No, not that One. I have in mind Jesus ben Sirach, credited with one book of apocryphal writings. That Jesus. He wrote Ecclesiasticus, or the Wisdom of Jesus ben Sirach. Only deep into the book do we find its most famous line “Let us now praise famous men…” and then with permission granted to myself to edit quasi-sacred writ, here are some examples of why the famous men are to be praised—for “giving counsel by their understanding, and by their knowledge of learning, wise and eloquent, honored in their generations, and the glory of their times who have left a name behind them, that their praises might be reported.”

Heady stuff. Few qualify in the modern world. Russ Feingold is among them however, recently turned away by the voters of Wisconsin, though still young enough at fifty-seven to return to the fray. Known as a great dissenter, Feingold voted against his own party 887. Looking remarkably like Daily Show host Jon Stewart, Feingold attributes his independent spirit to growing up in the small town of Janesville, Wisconsin where most of his friends were Protestant, many from conservative homes. Rather than conform, he excelled.

Not surprisingly a biblical analogy is used by a colleague to describe him. “He has been the David against some pretty big Goliaths,” said Sen. Maria Cantwell, D-Wash. “He never shied away from a fight, even if he had to fight alone.” He opposed the Patriot Act, the Bush bank bailouts, and the Obama troop surge in Afghanistan. Most recently Feingold joined 18 other senators from both parties in voting against President Obama’s compromise extension of the Bush-era tax cuts. The measure also extended unemployment benefits for millions of Americans, a key demand of Democrats. To me this is his most important vote in opposition. To give multi-billionaires tax breaks for two years in return for thirteen months of unemployment compensation to the neediest, the people who multi-billionaires put out of work to begin with, is a shanda, and I’m sorry our delegation voted for it, pleased as punch, to quote another mid-westerner that Feingold refused to do so. Feingold’s argument was more economic than my moral stance, but it holds: “Rather than include a combination of responsible spending cuts and revenue increases to offset its projected cost [the tax breaks] of nearly $900 billion … instead just adds its cost to our already massive national debt.”

Those were dissenting votes; he had positive ones as well, most notably the epic coalition-building that resulted in the McCain-Feingold Act of 2002 (after a seven years legislative struggle) that severely limited national political party committees from raising or spending any funds not subject to federal limits, and “issue ads” that name federal candidates within 30 days of a primary or caucus or 60 days of a general election, and prohibiting any such ad paid for by a corporation or by corporate or union general treasury funds. So-called soft money was the target; big business complained and in 2009 in Citizens United v. Federal Election Commission the guts of the bill were ripped out. Big corporations objected that free speech was imperiled, that money was speech and could not be regulated by federal legislation. The Supremes in Washington agreed (well, five of them, anyway) and McCain-Feingold went the way of the passenger pigeon. If the Court is right, if money = speech, America is in trouble; deep trouble. There are those few with many dollars and those many with few dollars. The rich can shout from the highest minarets, the poor get to write the occasional letter to the editor. Parity, which Feingold and John McCain (in his maverick mode) sought, is destroyed. The dollar rules, the voice of the people is muted. The bill took seven years to pass, and then seven years later it was declared unconstitutional. Pharaoh’s dream came to reality, again.

In bidding adieu to his colleague, McCain said “In his time in the Senate, Russ Feingold, every day and in every way, had the courage of his convictions. And though I am quite a few years older than Russ and have served in this body longer than he has, I confess I have always felt he was my superior in that cardinal virtue.”

In the 112th Congress there will be thirteen Jewish senators (counting Michael Bennet [D-Colo.], who does not identify a religion, but notes that his mother is Jewish and a Holocaust survivor.) Missing will be Russ Feingold of Wisconsin. A nation turns its lonely eyes to you.