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On Life

Ruminations and provocations.

Filtering by Tag: Bill of Rights

Political fundamentalism: Our true constitutional crisis

Stephen H. Provost

“Your right to use your fist ends at the tip of my nose.”

My father, an esteemed professor of political science, taught me that one. The idea is that rights – even the most fundamental ones – aren’t absolute.

Yes, I have the right to bear arms, but I can have that right rescinded if I’m sent to prison. I have the right to free speech, but that right doesn’t permit me to incite a riot. I have the right to practice my religion, but not to forcibly convert people or launch a jihad.

The limits on our rights should be obvious, but they seem to be growing less and less so. As politics become more polarized and positions become more hardened, more people are viewing issues in absolute terms.

This has long been a hallmark of religious fundamentalism, which views compromise as a dirty word and sees “situational ethics” as a tool of the devil to tempt the righteous. But of late, political partisanship has started to look more and more like a religious cult.

Identity, not issues

Donald Trump has tapped into this by casting himself as a pseudo-messiah who alone can fix it – whatever “it” is, and even if “it” doesn’t need to be fixed. But the problem extends far beyond Trump’s opportunism. It’s a rigidity of belief, a dogmatic loyalty that transcends issues and defines the true believer’s identity.

It’s not just Republicans; it exists on the Democratic side, too. Witness the anger among party regulars when Bernie Sanders, a (gasp) independent, dared to challenge loyal partisan Hillary Clinton for the presidential nomination.

My point isn’t to rehash the 2016 primary or general election. That’s been done to death, resurrected and keeps walking around like a zombie with a score to settle. It’s to illustrate that both sides have become more concerned with identity than with content. That’s why Trump can act in ways that seem antithetical to Republican ideals (Russia, tariffs, personal character) with impunity. Think about it: Trump himself has, at best, a passing acquaintance with what’s in the Bible, but he can refer to the Bible as a mark of identity, and Christians will stand up and cheer.

It's also why Trump’s status gets all the attention, and things like health care, education and crime barely register on the national news. Events like the Flint water crisis, the tragedy in Puerto Rico and the Las Vegas shooting (remember that?) break into the headlines temporarily, only to quickly disappear and be forgotten. They’ve had their 15 minutes of fame. The woman dying in a hospital because she can’t afford a prescription and the homeless guy who couldn’t repay his student loan don’t even get 15 seconds.

We care about identity, not issues. About labels, not people.

This isn’t just a result of tribalism (although it certainly is that), it’s fundamentalism, the engine that drove the Russian Revolution, the rise of Mao Zedong and, yes, Hitler’s ascension. On the surface, fundamentalism seems to be about strict adherence to dogma. But it’s really about magnifying personal power through the lens of identity, usually provided by labels or charismatic leaders. If those labels or leaders are challenged, principle will be sacrificed in a heartbeat to protect them.

People have asked me why I dislike identity politics (which is, incidentally, practiced by both sides). There’s your answer.

Objectifying our principles

As positions are hardened and battle lines are drawn, the Constitution begins to function the way the Bible does in the world of Trump. It becomes less a source of guiding principle and more an object to be defended. Its contents and meaning become less relevant; all that matters is the identity it conveys on true believers.

They see the Second Amendment as an absolute right not only to bear, but to brandish and even to use firearms, including the most lethal. Especially if they’re the ones holding the guns.

They believe the First Amendment protects even speech that incites others to violence or curtails their rights to life, liberty and the pursuit of happiness. As long as they’re not on the receiving end of it.

They invoke it to defend the practice of religion – even when that practice involves discrimination, bigotry or passing restrictive laws based against “outsiders.” As long as their the ones making those laws.

This us-versus-them view of the world is the root of the problem. “We” are always right, good and superior. “They” are always wrong, evil and inferior. Such fundamentalist paranoia about “the world” and “heretics” and “unbelievers” has infected party politics to a degree not seen since the Southern white establishment’s resistance to the civil rights movement. It’s reflected in the attitude of many toward immigrants, regardless of legal status, and toward people belonging to the opposite party.

It has been, of course, the justification for slavery, pillage, murder and genocide.

Strict manipulation

Such attitudes are buttressed by the concept of “strict constitutionalism” – of applying the Constitution “the way the framers intended.” This sounds noble on the face of it. But not only is it problematic, it’s ludicrous and, in the end, dishonest.

It’s problematic because we can’t get inside the framers’ heads to determine exactly what they intended. We can consult their writings, but guess what? The framers didn’t all agree on everything. They reached compromises. In fact, based on their actions, that may be clearest conclusion we can draw about their intent: that they agreed on the value of compromise – quite inconvenient in the current political climate, where compromise is viewed as weak or downright evil.

(This aversion to compromise is, not surprisingly, another hallmark of religious fundamentalism. You don’t compromise with outsiders, unbelievers and heretics. You don’t give the devil a foothold. In American politics, you don’t call him the devil. That’s something Ayatollahs do. Instead you label him – or her – according to his or her political party or race or sexual orientation. You say he’s a communist or a Nazi. Or you call him names like “liddle” and “crazy” and “sneaky” and “crooked.”)

Now, where were we? Oh, yes ...

Applying the Constitution as the framers intended is ludicrous because they intended it for the world they lived in. Not ours. They set forth a series guiding principles were meant to be universal, or nearly so, not a hard-and-fast code of conduct.

They weren’t intended to be applied the same way every time; broad principles never are. Sometimes, “love thy neighbor” means to give of one’s self out of compassion; other times, it means practicing tough love. It all depends on the circumstances, and circumstances have changed dramatically since the framers’ era. They lived in a world of newsletters, bayonets and horse-drawn carriages, not social media, assault weapons and Teslas. They couldn’t have envisioned our world, and they didn’t try to. They counted on us to follow the principles they set down, not try to replicate how they would have interpreted them.

So, it’s ultimately dishonest to try to get inside the framers’ heads and apply things the same way they might have. It’s like trying to get inside the head of God – which is what religious fundamentalists do all the time. And guess what? The dictates of such a “God” nearly always wind up echoing their own biases and furthering their own agendas. In the same way, strict constitutionalists tend to substitute their own biases and agendas for what they imagine the framers might have intended. This isn’t strict constructionism.

It’s reconstructionism and, strictly speaking, a power grab.

The upshot

These days, many Americans no longer think twice about sacrificing principle in achieving their goals, whether those principles are contained Bible, Constitution or somewhere else. To them, identity is more important. “Winning” is more important.

Welcome to the Machiavellian States of America.

Neither Islam nor Christianity is the true threat to our republic. The real danger lies in the fundamentalist approach to both that has spread to our politics.

If we really believe in the Constitution, we have to stop “defending” it and start abiding by the principles it sets forth. If we don’t, we’ll be spitting in the face of the framers we pretend to revere and exchanging their vision for the very thing they fought to be free of: tyranny

We’ve started down a road that leads us to a place where we won’t recognize ourselves ten years from now. We won’t recognize our country. And worse still, a good many of us may actually like it.

Ice cream, logic and the Second Amendment

Stephen H. Provost

You’re hungry. You want to go out and buy a gallon of ice cream, despite the fact that you’re diabetic and doing so could kill you. But hey, we’ve all got to eat, right? Never mind the fact that you’re already at a healthy weight and in no danger of starving without that ice cream.

You’re thirsty. You decide to go to the bar and have a shot of tequila. Then a gin and tonic. And while you’re at it, you’d like a pitcher of beer to wash it all down. After a while, alcohol poisoning becomes a real possibility, but before you even get that far, the juice will begin to impair your judgment and lower your inhibitions. A one-night stand with the wrong person, a barroom brawl or, worse still, a fatal accident on the interstate could be just around the corner. But it’s all good because people have to drink, don’t they?

But do you have to drink alcohol? Sure, it’s liquid, but drinking too much of the stuff can actually leave you dehydrated.

Countless bad decisions have been justified by the phrase “I need that” —when the person doesn’t really need the thing at all. He or she may want it, to be sure, but as Mick said, “You can’t always get what you want.”

Unless, that is, you can convince other people you need it.

Ice cream and guns

Enter the Second Amendment to the U.S. Constitution: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

To paraphrase: “We need a militia to keep us safe, therefore …”

I’ll put aside the difficulties of defining “the people” and “arms” for now, because I want to focus on the premise. The writers were clearly saying, “We need this, so we’re going to guarantee that.”

But here’s the rub: In an age of standing armies, we no longer need a militia.

When a premise is obsolete, any conclusion drawn from it must be questioned. You don’t need a gallon of ice cream if you’re in no imminent danger of starving —and even if you were, another food source would work just as well.

In the same way, you don’t need a militia in an age when you're protected by the world’s most sophisticated, heavily funded standing force. The premise no longer holds, so the conclusion collapses.

The demands of logic

The Supreme Court majority disagrees with me. Its argument, stated in District of Columbia, et. al. v. Dick Anthony Heller, is that “apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.”

In other words, the premise doesn’t matter, because what follows could stand on its own.

To illustrate this, the court replaces the actual introduction with an unrelated premise — a non sequitur. The Second Amendment, it argues, would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.”

The first part obviously has nothing to do with the second.

But this straw man argument utterly fails to address the question that remains: If the conclusion could stand alone, without the premise, why did the framers include that premise in the first place?

The court answers its own question in the Washington, D.C. opinion by stating that “logic demands that there be a link between the stated purpose and the command.”

Logic demands.

With these two words, the court has given the correct answer to the question of why the framers included the introductory clause: It is, in fact, the premise in a logical argument.

Having it both ways

As we’ve already seen, though, a conclusion is worthless if the premise invalid: Without the premise it becomes merely an assertion. As a conclusion, it collapses under its own weight.

We’ve also seen that, in an era of standing armies, the premise that a “well regulated Militia is necessary to the security of a free State” simply isn't accurate. It becomes just as nonsensical as the hypothetical non sequitur the court introduced concerning the petition of grievances.

The court simply cannot have it both ways. It cannot, on the one hand, assert that the conclusion stands on its own regardless of the premise while, at the same time, maintaining that both are components of a logical argument — thus making the premise necessary to support the conclusion.

The premise was valid when it was written. The disparate collection of rebels who formed our fledgling nation did, in fact, need militias to guarantee their security back in the 18th century. But that doesn’t mean we need them today. The premise is no longer valid and, therefore, neither is the conclusion.

To argue otherwise would be to state that the framers might as well have included that hypothetical premise about the redress of grievances. Or, for that matter, a belief in astrology. Or the quest to land on the moon. Or anything else you’d care to mention. The majority justices in this opinion are basically suggesting that the framers could have used anything to fill in the blank, as though they were playing a game of Mad Libs.

But they weren’t. They were making a logical argument — as the court itself affirms. The premise they included in the Second Amendmentwasn't some random statement without any bearing on the conclusion. It was, in fact something that the framers saw as a necessary component of a logical argument.

The fact that the reasoning is obsolete doesn't change that, no matter how much the court majority might wish it would.

Mental gymnastics

The majority is, in fact, is trying to perform an impossible task. On the one hand, it seeks to maintain the Constitution, and specifically the Second Amendment, as an essential component of the nation’s social contract — a necessary premise upon which our system of government rests. At the same time, however, it must deal with the fact that a premise within the amendment itself is no longer valid.

That’s quite a conundrum, and it helps explain why courts and the nation as a whole is so closely divided, philosophically speaking, on this issue. (They’re divided on a practical level as well, by competing agendas, but that’s another issue.)

We don’t like the idea of admitting that something in our founding documents is no longer relevant, because we’re afraid that in doing so, we might cast doubt on the rest of their contents. We therefore fall into the trap of defending the authority of the documents themselves, rather than affirming the principles upon which they rest: violating the spirit of the law in a vain attempt to preserve the sanctity of the letter; creating fallacious arguments to prop up outdated logic.

Where does that logic lead us?

Toward that tub of ice cream or that bottle of whiskey. To something we no longer need but still want. One could argue that we, as a nation, have the same attitude toward guns that the gluttonous man has toward his ice cream or the alcoholic has toward his Jack Daniels. In all three cases, we invoke a perceived need as an excuse to continue feeding an insatiable appetite that isn’t good for us.

We continue to defend outdated logic that we need guns for one purpose in order to preserve our right to wield them for other reasons entirely.

Burden of proof

I’ve been told that, in order to find a flaw in the Second Amendment, I’ll need to change the Constitution. But I disagree. The logical flaw is there, right in front of our noses, and our failure to acknowledge it won’t make it disappear.

There are other reasons to bear arms, but we can’t infer from the document as written that these are sufficient to secure a right to do so. And we can’t simply cast aside the premise of a logical argument that was an essential part of the document as written … unless, that is, we amend the amendment. The burden of doing so must be placed squarely on the shoulders of those who believe in the right they want to uphold: either by removing the archaic premise about militias entirely, or by replacing it with another premise altogether — such as a right to individual self-defense.

But it’s impossible, in my view, to deny that the amendment as written, is an invalid argument. And once we admit that, we must also acknowledge that such an argument is not fit to serve as a guiding principle for a great nation.

Guns are, most certainly dangerous. But it’s far more dangerous to engage in mental gymnastics to convince ourselves that something’s logical when it isn’t. Guns may kill the body, but logical fallacies destroy the mind.

This is what we’ve come to. The Supreme Court majority is flat wrong. Its reasoning simply backfired.

Independence Day: The Perfect Time for Independent Thought

Stephen H. Provost

As a child, Independence Day was my favorite holiday – because of the fireworks, of course, and because it meant that, the following day, I’d get to blow out candles, eat cake and open presents for my birthday.

Now that I’m an adult, it’s still one of my favorites. I don’t get as many presents these days, fireworks won’t light up the sky in many places because of the fire danger caused by the drought, and I shouldn’t eat cake because of my diabetes. (Shhhhh. Don’t tell anyone, but I’m going to do that anyway. I’ve given myself permission to indulge once in a blue moon.)

These days, the reason I like the holiday is what it stands for: not just the birth of my nation but even more than that, as the name indicates, independence.

It marks the date of publication for the Declaration of Independence, a document that begins memorably by naming three “unalienable” rights: Life, Liberty and the pursuit of Happiness.

Independence meant, according to those who penned this document and the 56 men who signed it, the ability to exercise these “self-evident” rights.

Almost half the Declaration is a laundry list of grievances against the British Empire, the authors’ justification for declaring their freedom from what they described as “an absolute Tyranny over these states.” Each of those grievances, these men felt, denied them one or more of those three basic rights they spelled out in their introduction.

They made their case to the world in this document, published on July 4, 1776.

This happened before the adoption of the Constitution, which wouldn’t even be drafted until more than a decade later. It happened long before two major parties came to dominate the nation’s politics. It was before the Civil War and the Civil Rights Movement, before greenbacks and the Red Scare, before the “liberal media” and “conservative talk radio.”

The Declaration’s authors were writing on a clean slate, and the first three principles they highlighted were Life, Liberty and the pursuit of Happiness. Philosophically, everything else the nation, and we as citizens of that nation, stand for rests on that – even the Constitution. Whereas the list of grievances in the Declaration set forth the founders’ ideas of what freedom wasn’t, the Bill of Rights laid out what they thought it was: specific rights to such things as a public trial, free assembly and expression, freedom from the establishment of religion by law, and so on. But again, all were based on those three self-evident, founding principles set forth in the Declaration.

If we interpret the Constitution in such a way that infringes upon Life, Liberty and the pursuit of Happiness, we may not be breaking the letter of the law, but we’re violating its spirit. Its inspiration.

As an author, I can tell you that, without inspiration, there would be no story, let alone a happy ending.

Independence was meant to be not only the beginning for these United States, but the mechanism by which we endured from one happy ending to the next. Not just independence as a nation, but independence as people.

The grievances in the Declaration might be summed up in the simple, defiant statement, “No one’s going to tell us (or U.S.) what to do.”

That’s why the Fourth of July is more than a celebration of our nation’s independence. It’s an affirmation of our independence as individuals, of our freedom to assert those three unalienable rights.

We can’t do that without independence of thought, without the willingness to stay off the bandwagon. The willingness to question the dogmatism of our politicians, religious leaders, buzzwords, sound bites and ad campaigns – those professed “truths” that seek to pass themselves off as self-evident when they may not even be true at all.

We can argue until we’re red, white and blue in the face - wrapping ourselves in the language of patriotism as much as we want - over how to interpret the Constitution.

But unless our interpretation upholds those three unalienable rights that undergird the Declaration, we do ourselves and our country a grave disservice.

That may not be a matter of law, but it’s essential to spirit.

The spirit of 1776.