Never Thought About It That Way Before…

brochure1-mBirthday: August 4, 1961

Statehood: August 21, 1959

The first is the birthdate of the current President of the United States. The second is the date that Hawaii was transformed, by law, from a U.S. Territory to a U.S. State. The two dates are separated by two years, and just about two weeks. If Mr. Obama had been born on, say, August 20, 1959, he could not become  President.

On October 5, 2004, a Yale Law Professor named Akhil Reed Amar testified before the United States Senate. At the time, the Senate was exploring the reasons why, in today’s world, an immigrant was not allowed to become President. Professor Amar knows a great deal about the U.S. Constitution. He points out, “the Founders did exclude…immigrants from the Presidency. But they did so because some at the time feared that a scheming foreign earl or duke might cross the Atlantic with a huge retinue of loyalists and a boatload of European gold, and then try to bully or bribe his way into the Presidency…In a young America, when a fledgling New World democracy was struggling to establish itself alongside an Old World dominated by monarchy and aristocracy, this ban on foreign-born presidents made a lot more sense than it does in the twenty-first century.”

He goes on to explain that seven of the Constitution’s thirty-nine signers were immigrants; that three of the first ten Supreme Court justices were foreign-born; and that similar statistics applied to other key government figures. What’s more, the Constitution was approved by an enormous number of people who were not born here; the same is true of nearly all of the Constitution’s amendments. People who serve on juries, people who vote, people who want to run for Governor of any state…all of these people may be foreign-born. But not the U.S. President.

It took me a bit to get past my emotional responses to Amar’s arguments, but after reading nearly 1,000 pages of his analysis and provocative investigations, my mind is now becoming accustomed to the kind of workout that a law professor can provide.

amar_akhilI started reading Amar’s book, American’s Unwritten Constitution: The Precedents and Principles We Live By last spring, but quickly realized that the book would make a lot more sense if I first read America’s Constitution: A Biography. The first book explains how the Constitution came together, and how its ideas have been interpreted, applied, shifted, calcified, de-calcified, respected, and transformed. The second book is more provocative; it requires the reader to consider his or her place, the decisions that we make within and beside the Constitution, the responsibilities that we accept as, for examples, voters and jurors.

The word juror, for example, is derived from the French and Latin words for “swear.” Not what I would have thought, but then, Amar shines the light on the concept of swearing an oath. What does the oath promise. In essence, we take an oath to use our conscience effectively. That is, we are swearing that we will, to the best of our ability, exercise a reasonable, moral, ethical judgment based upon the information provided to the jury. Which is to say, “when a juror is not told what punishments she is actually voting to inflict, and not told that she has a legal right to just say no and a legal duty to consult her conscience, then the moral foundations of the entire system begin to crumble.”

He goes on–these are long books, best appreciated over an entire summer of quiet nights–“Current practice…all too often instrumentalizes and infantalizes jurors by disrespecting or derailing their moral judgment. When a juror finds a man guilty of having shoplifted a baseball glove and only later finds out from a local newspaper or lawyerly acquaintance that what she really voted for was in the jury room was to send this poor soul to prison for life (and at taxpayer expense), she is apt to feel ill-used–as is the defendant, of course.

I think I’ve dog-eared the bottom corners of perhaps fifty pages–each containing a notable idea that I want to think about, learn more about.

Professor Amar, loose and having a good time as a guest on The Colbert Report last January.

Professor Amar, loose and having a good time as a guest on The Colbert Report last January.

In the second book, much is made about the Northwest Ordinance, a subject I vaguely remember from seventh grade, and perhaps, tenth grade in slightly greater detail. The key idea–and you’ll see why this phrase was so important in a moment–the key phrase in that document was “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.” No slavery in what would become the states of Ohio, Michigan, Illinois, Wisconsin and Minnesota. Amar points out, “(these states) formed the backbone of the Republican Party. Men from these places filled the Union Army at every level, from Grant and Sherman on down. Without these northwesterners, there would have been no President Lincoln, no Civil War victory, and no Abolition Amendment… Residents of this region arrived there from many different places (especially from the free states, of course), and inclined toward a distinctly nationalist worldview. Whereas nineteenth-century Virginians like Robert E. Lee gave pride of place to their home state (which had pre-existed the Union by more than a century…), northwesterners tended to see themselves as Americans first and state residents second. America had chronologically preceded the states they now called home.”

I kept finding myself thinking, “gee, I never thought about it that way.” I suppose that’s why, through all of the details of Supreme Court cases, nuances of amendment wording, minute details about the judicial process, I stuck with it. I have fifteen pages remaining. I will finish my summer’s reading before I fall asleep tonight. This summer, Professor Amar taught me a lot. And based upon the dog-ears, I’m not going to finish with these ideas for a long while.

As it should be.

Amar-Americas_UnwrittenHORIZ

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