(Let me warn you this diary is not going to make you happy. That is, unless you let it do so in its own way.)
I'm a little late in renewing my ACLU and Amnesty International memberships this year. I've been away some, and busy, and now I have a ton of pleas from these and other groups, including non-legalistic charities, and political fundraising drive-bys, all over my place. No sooner do I scan and chuck a sheaf, than another appears; or so it seems, there are credit card offers abounding as well. My three year old has even started opening and summarily tearing up my mail.
(When is the last time anyone got an actual letter in the mail? Or for that matter something they wanted, via the actual US Postal Service? Have the nation's mail-carrying legions been turned into nothing but SPAM couriers? Isn't it lousy to live in a time when a three year old tearing up your mail sight unseen, might not bother you particularly?)
Enough chitchat. Let's get to the heart of it. Civil liberties exist not because they are recognized by governments (remember, we have many of these in the US alone), but because they exist. The just do. You can't recognize something that doesn't exist on its own, anyway.
However the recognition of civil liberties by government is important. This is the one thing that is truly yours in life under government. Government owns all of your property, your income, your life even. Thus you can be drafted, incarcerated, executed, or merely neglected to death, without infringing upon the inalienable liberties that government recognizes.
Don't be confused about this. Government cannot take away liberties from people that they otherwise accorded to them. If government can take it away, it was a privilege. This goes against popular rhetoric, but remember this is a fresh look.
Think of the radio-collared parolee. Because that person exists, you don't have a civil liberty that prevents you from being radio-collared, and your whereabouts thusly tracked and limited. You are tracked, and your whereabouts are limited, but your chain is long. Once in a while at an airport, a traffic stop, or similar, you might suddenly release you are wearing a collar when you are choked to a halt. Liberties are not defined by values on a sliding scale. You don't possess a liberty that the parolee does not, merely because your chain is longer.
Think of the Draft. When many, many young men in this country were being sent to serve in Viet Nam, were their civil liberties infringed upon? Well no, not any that the government recognizes. A person can be required to kill or be killed in our society, period. That this has probably not befallen you personally changes nothing.
You can paint a Madonna with horse dung, provided you don't expect public money for the effort. But you cannot refuse to be a warrior. That you probably haven't done either, is equally irrelevant to the truth of the matter. When you get right down to it, the recognized civil liberties that we have, or are willing generally to try to recapture from recent threats, are a pretty odd bunch. I'm not even going to try to enumerate them here because it would be too depressing, I think; but I suspect it would look something like a slice of Swiss cheese with several large bites in it.
One might cynically look at the liberties we have, and theorize that these exist to fool us. If we feel secure in our homes and possessions from unreasonable search and seizure, we feel like we own them even as we rent them from the government. If we can say what we wish we feel our consciences are our own even as we may be forced to fund, or even do, things that weight heavily upon it. But that is not the theory I offer here; I have a worse one.
What's the old, onerous saw? If you aren't doing anything wrong you have nothing to worry about (so therefore you need no civil liberties unless you are doing something wrong). Well, actually that's not true. Sometimes people are persecuted when they haven't offended against anyone or actively done anything unlawful. That can happen for any number of racial, political, cultural, or merely not-liking reasons; but typically anyway, that's itself illegal. Civil liberties are themselves laws that protect people in such cases; the negative space that gives law shape and thus a component part of it, perhaps every bit as important as the other half which would be raw lawless power otherwise.
Some people got unlucky in the American colonies, and so the founding fathers (not just the powdered wigs but every last revolutionary) did something about it.
Is that right? Is that the story? It's what we are told, right? Of course conservatives have their own narrative: For them, taxation without representation was the reason to revolt. But that explanation makes even less sense in explaining why we have civil liberties nowadays, and specifically the batch of liberties we have. Or does it?
Brace yourself for an insight that was new to me and therefore may be new to you as well. The founding fathers actually had a lot to worry about, because they were doing something wrong. They revolted violently against a government which ruled them by all rights theretofore recognized. They revolted even against an equal number of loyalist Americans who wanted to have them hung we imagine, and who were sometimes hung in turn. It's not as if the whole country went along and revolted. About a third of it did with a third sitting it out and another third cheering on the other side to say the least.
The founding fathers were treasonous. Had they lost they'd likely be remembered as murderous thugs, conspirators. Maybe they'd have a following among their descendants like the Confederates but probably not so much, because the American loyalists don't. The states weren't all one way or the other on this so there would have been no state governments working the star spangled banner into the state flags and going around erecting monuments to the Revolutionary Dead.
And this isn't just a "winner's write the history books" observation. What the founding fathers did was way, way out on a limb. And I defy anyone to show why the provocations against them were particularly remarkable as these things go.
So we know why they were so keen on civil liberties for themselves after the Revolution. Some of them certainly hadn't been all for the Revolution from the get-go and they wouldn't want letters that showed them as Loyalists at some impasse turning up, just as an example. They could not have expected the relative smooth sailing they had (which 1812, among other things, sorely tested).
One of the other reasons for the War that is little known is that the founding fathers wanted to screw the Native Americans on some treaties that the Crown and Parliament of England insisted on honoring. But then, in Andrew Jackson's Presidency, our own Supreme Court proved a stickler for treaties with the Civilized Tribes. We all know how that went... Jackson ignored the court and sent the Cherokee weeping on down the road.
So the United States was formed because people didn't want to pay the taxes that their government wanted on cargo. And because they wanted to do illegal things to take property from others, who as it happened were not of their own ethnicity. They wanted to kill those people if they put up a fight. The founding fathers, with many redeeming qualities just like all the best ones in fiction, were a fucking mafia.
They weren't fighting as zealots, terroristically, they raised an army, the transformed into a proper government. Once you are running the government you aren't a mafia anymore, that is not my supposition here. Rather, my point is that these guys supported civil liberties because they themselves had been up to no good, and might want to get up to know good under the radar of their new government too.
Think about it: They imported and traded slaves. They beat and sexually exploited them with some regularity. They had white indentured servants and mulatto slaves, who anecdotally were systematically bred using Scandinavian "studs." There was some question initially that African slavery would ever take hold over moral issues at its genesis, and there was always some degree of an abolitionist movement. But many of these guys were way into it.
Think about it: They hadn't wanted to pay taxes on goods. How you avoid paying taxes on goods is not having your ship's hold, wagon, or warehouse searched.
Think about it: Free association and assembly. Yeah, such and such person went to so and so's barn with lots of other guys on a given night, but that's there business and not to be investigated or used to cast any legal aspersions. Free speech. Sure so and so said something inflammatory standing on top of a barrel in the middle of a crowd. We don't have any witnesses that say he was among the rioters the next day.
Think about it: They orchestrated a rebellion, through subterfuge and secret signaling against what was then the most powerful government on earth and which they had been raised to be loyal to. A government which on one obscure but relevant point was more virtuous than they. That government had potential agents, certainly sympathizers, among one third of the country, and you could not always tell who they were. Same proportion of partisans and unconcerned as we have between blues and reds nowadays. The most die-hard and overt loyalists left this country after the Revolution but many others remained behind and became a powerful political force. They also had lots of financial pull: From the get-go, banking was a rather loyalist-seeming enterprise. Later the British tried to recapture the country and had good reason to think they could... They thought they'd be welcomed as liberators and no doubt some did feel that way. Think about it. The founding fathers didn't know when they'd lose control of their own country and be traitors again after a quick tipping of the scales.
Think about it: They had begun to realize just how big and rich this continent is, and also saw how hard a time the European powers would have in holding onto Latin America compared to a European power with an American homeland. They must have seen the potential for what we know as the Monroe Doctrine and what could easily have been an overt empire, in theory, then.
Okay...
Now follow the skein on down the years. Which party, exclusive of ending slavery for blacks, has been most closely associated with civil liberties? Particularly from the end of the unsuccessful Confederate Rebellion, on through Tammany Hall, The twenties, the thirties, the forties when many Southern Dems supported Germany and took lobbyist money from Berlin... On up through the years when the sons of Joe Kennedy, moonshiner, led this party... Get the picture yet? Understand some of the prejudices that have been built up about the Democratic Party a little bit better?
Do you see how it is that we have a two party system after all this time? Because after the Whigs weren't the party descended from the loyalists anymore, the business leaders needed a new party. The carpetbagging and before that Union war supply, made the Republicans a natural fit. Democrats got votes but seriously, it takes more than votes. They got votes from the immigrants who worked in the mills and mines for the Republican bosses, and lived in their tenements, and who sharecropped the cotton in the South, white and black. They got support from unions when unions appeared, but famously not only from unions but other entities that arose among immigrant populations.
Franklin Delano Roosevelt is the odd man out. It's not unusual for relatively wealthy people to be Democratic Presidents, it seems at first blush, but comb the 20th Century. Old Money is rare there. Roosevelt was elite, and would have been even without Teddy Roosevelt before him, as a great Republican President. By no means am I implying that most Democrats were corrupt, associated even by degrees of separation to organized crime measurably. I am not suggesting that Roosevelts rich, dutch heritage exempted him from some sort of Dixie Mafia vibe. What I am stating though, is that both Roosevelts represented a distinct elite, the non-Anglo elite, getting the top spot. First in giving the Republicans something other than the Civil War to be about, secondly in beginning the split of the Democrat Party, South and North.
Just as Emancipation steals the limelight from the other things that started the Civil War, so too does Desegregation steal all the thunder from an earlier impetus for the Southern Democrats going Republican. As I mentioned, many Southern Dems did not want to get into World War Two. Why would they? Of course once the War got rolling everybody had to support it wholeheartedly and the history books say they did. I don't question that any more than I would question that Democrats fundamentally support the American side in any conflict. But that doesn't mean you support the conflict itself. Of course the Iraq War and WWII are apples and oranges; but what needs to be understood is the fault line that can come into being in such cases. I believe Desegregation a generation later, but still during the reign of some of the same politicians, merely burned the bridges over the faults opened in the prelude to WWII.
I should add something here about a plot by the pro-German forces in the Senate, by no means all Democratic but including many Dems, to force Hollywood to make fifty-percent pro-German propaganda films instead of all the RAF stuff they were pumping out once England was is it, but we were not, yet. It's a little known anecdote. I only know it because my Grandfather went to Yale with the guy Roosevelt covertly got to stop that effort, I have a copy of his (actually unpublished) manuscripts detailing the events, in my possession. I wouldn't have heard it anywhere else and you might not either.
How did Lawrence accomplish this? He successfully applied the First Amendment to films in court. That's right. Sam Goldwyn was allowed to make all one-sided propaganda movies under the First Amendment because this fellow tried and succeeded where no one in decades of movie-making up to that point had, or had even thought to (my conjecture).
Civil liberties.
Thus Roosevelt, scion of wealth and privilege, has an explicit use for a civil liberty that we still enjoy. Taking a nation to a war it might not have wanted, certainly if Hollywood had helped convince it not to want.
I happen to think this was all the right thing for Roosevelt to do, and that WWII was a war that we needed to fight. But this is about understanding things not casting them according to partisan lines or as right and wrong.
Isn't it ironic?
No, not that last bit. But the fact that it seems when John Q. Public isn't getting absolutely shafted...
He may owe the existence of those civil liberties to powerful and corrupt people...
Who want them, and want them anonymously, and thus for everyone...
Because in a country with warring elites split so evenly, that's the only way to have any security.
And not just from discovery of wrongdoing...
But from fabricated reasons, or oppression without pretense.
It's that last bit that's the punchline to all this.
I'm not really suggesting the founding fathers were up to no good, heavens to Betsy Ross, I would never.
Nor am I suggesting that the present powers would have anything to hide...
Because, in the current economy, you really don't need to cheat in order to get ahead especially if you are already ahead.
No, what they need to respect civil liberties for has a lot to do with the bitter, broad and deep partisan divide we have.
As less and less inroad into liberty is illegal, and more and more it's just due diligence, exploitation will happen, and probably has already.
After all, it's all perfectly legal... Sans civil liberties.
But on another note, an up one as my Grandfather said it is best to end on...
People like use who are not elite, who are not up to no good, and who are humanitarians and egalitarians... We need to recognize that the existing configuration of civil liberties is not all we ought to be out for.
For one thing, people in other countries need to be recognized explicitly as possessing civil liberties, rather than merely inferring this piecemeal and indirectly through narrow laws.
For another, Kos et al are on the right track in talking not about individual amendments and such, so much as the likes of a "Right to Privacy."
And lastly, perhaps not satisfying but fortifying, we need to view civil liberties as peace, and be willing to sacrifice for peace and not keep tit-for-tatting with the other side. I don't mean sacrifice the liberties for peace; I mean we need to resist the temptation to use our imminent congressional majority to erode those liberties conservatives more commonly hold dear.
(And finally, this is a big one for me, a personal crusade.
The government should not be in the business of delivering SPAM, especially not SPAM made out of wood pulp that used to be living trees. We need a civil liberty that prevents unsolicited bulk mail through some means that still lets us receive what we wish... But adequately discourages the practice so that it is not engaged in just because the competition does it too.)