Despite rush to unity after 9/11, U.S. remains historically divided

 

Gordon L. Weil

As the U.S. marked the 20^th anniversary of the 9/11 attacks, the pundits came out in full force. 

Many lamented that the sense of national unity in 2001 had been so quickly replaced by deep divisiveness.

The Al Qaeda attacks gave all Americans, regardless of their political views, a common enemy.  The country immediately united, and Congress granted the federal government unusually strong powers to fight terrorism.  A token of that common commitment was the Patriot Act, giving the government the power to violate privacy.

At two earlier major turning points in American history, people had also displayed national unity. At those times, most Americans understood they faced a common adversary.  Yet, beneath that unity, a deep split existed.

The first event was the war against Britain to win American independence.  The Declaration of Independence of July 4, 1776 is mostly a long list of bitter complaints against the British king for failing to give the colonists, most having British origins, the same rights as their fellow Brits. Instead, he treated them as second-class underlings.

The opposition to arbitrary British rule was strong enough to yield independence even among people that could not agree on treating their African underlings as they wanted to be treated by the British.  On slavery, Americans were deeply divided.

Southern colonies threatened not to join in declaring their independence if the northern colonies insisted on condemning slavery in line with the theory that “all men are created equal.”  For them, slavery might be more important than independence. 

The North wanted independence above all and dropped a reference to slavery from the draft Declaration.  That decision, papering over a deep split, may be the basis of the centuries of divisiveness that have followed.

Another wave of national unity came after the Pearl Harbor attack on December 7, 1941 that brought the United States into World War II.  Divided just the day before, the country unified to fight the Nazis and Japan. Once again, deep differences, this time over the huge economic and social changes brought by President Franklin D. Roosevelt’s New Deal, were set aside.

In these two cases and the reaction to 9/11, Americans showed they would unite against a common foe.  But divisiveness, so much deplored today, was always present. Unity in favor of a common goal, other than winning a war, has always been elusive.

The common theme of divisiveness goes back to the Revolution and continues uninterrupted today.  The conflict over race could have been settled by the Civil War, but it wasn’t. The North won its cause of preserving the Union.  But the South won its cause of preserving racism.

Just as the colonies had rebelled against Britain, the Confederacy rebelled against the United States.  The American flag became a worldwide symbol against tyrannical rule, and the rebel flag became a national symbol of resistance to government limits on a person’s rights. 

The Confederacy’s Stars-and-Bars came to represent the assertion of individual rights against government.  That sentiment extended to opposition to official authority on many issues, and the Confederate flag could be seen all across the country.

In recent decades, it was finally recognized as a symbol of racism, which became increasing difficult to profess publicly.  Only with the arrival on the national scene of Donald Trump was the stigma of harboring racial prejudice somewhat relieved through attacks on “political correctness.” 

Trump flags fly as Confederate banners once did. Like the Confederate flag, they may mean less about Trump as a political figure than serving as an expression of personal defiance of governments, seen as limiting personal rights.

Today, a conflict exists between governments that require vaccinations and wearing masks to control Covid 19 and opponents who believe that such demands violate their personal rights.  At its core, this conflict is political and regional.

Eleven states in the South joined the Confederacy, trying to break away from the United States to preserve slavery.  Now, nine of those states are among those with the worst vaccination records and nine, duplicates except for one, are among the states with the highest case rates.  Only Virginia is absent from both lists.

Nine of the formerly Confederate states voted for Trump in 2020. Most are trying to change their voting rules to undermine expanded voting by African-Americans and Hispanics to ensure that traditionally conservative GOP control can continue.

While Americans may unite against a common threat, history shows more evidence of division that it may have its roots in the compromise that brought 13 colonies together to declare their independence. It has deepened as the two sides reach almost equal political strength.

Divisiveness is American, and the battle between public health and individual rights amounts to another Civil War.  The depth of division may, as before, threaten the American system of government.

Supreme Court rules on abortion as Congress defaults; becomes real federal legislature

Gordon L. Weil

The U.S. Supreme Court just sent a strong signal that it could soon change its collective mind and rule that a woman has no constitutionally protected right to have an abortion.

By taking no action on an appeal to suspend a new Texas law, it took a giant step toward acting as the national legislature.  It took charge, because of a vacuum left by Congress.  Forget about three equal branches of government and their checks and balances. 

The Court allowed into effect a Texas law that limits access to abortions to the point of eliminating it.   Texas tried to dodge responsibility for its own law by only allowing private parties to enforce its extreme terms.

Congress has passed no abortion rights law, leaving the Supreme Court to create such rights. That makes it the federal lawmaker, despite claims by justices that they only apply the law but do not make it.

All nine justices recognized that Texas wants to outlaw abortions. What the Court has legislated as a right, it looks about ready to repeal.

Justices understood that, by allowing the law to go into effect, abortions in Texas would stop.  Providers lack the resources to withstand a possible flood of cases, even if many have no factual basis.  The law raises major political and constitutional issues.

The five-member majority quietly let the law go into effect, leaving abortion providers to find some way to bring an acceptable legal action against it.  It is possible, they noted, that a Court decision more than a century ago could block it from second-guessing state courts.

Chief Justice John Roberts wrote that the law should be suspended until the federal court system ruled on it using normal legal filings and hearing procedures.

Roberts was supported by the three justices considered to be liberals.  But they also noted that, in their view, the Texas law violated the Court’s own earlier decisions allowing abortions.  

The Court long ago adopted the principle that it would usually stick to earlier constitutional decisions on which people relied.  Sen. Susan Collins said that, before voting to confirm Brett Kavanaugh as a justice, he agreed that abortion rights were such “settled law.”

The Court chose one earlier decision, limiting its ability to overturn a state’s action, over another, a woman’s right to an abortion in the first three months of pregnancy with no state allowed to stop it.  Before ruling on the constitutional conflict between its decisions, it effectively decided – for the state.

Its refusal on procedural grounds to delay the Texas law permitted a result that it had previously found illegal.  That way of thinking could ripple across the states on other issues, and that’s why Roberts wanted first to follow usual judicial procedures.

Whatever the effect of the Court’s failure to act, it deployed a method it increasingly uses to avoid taking clear responsibility.  It has reduced the number of its formal decisions, substituting the so-called “shadow docket” to make major rulings.  Under it, without hearings or legal briefs, key decisions are hidden by making them seem only procedural.

The Trump administration sought such quick action 41 times in four years and won 28 times.  In the 16 years of the G.W. Bush and Obama administrations, it was used only eight times. It seems conservative justices prefer fast answers and little transparency.

The Democrats may have worried about losing a vote to establish a federal right to an abortion, which would put the Roe v. Wade decision into law.  But public opinion now seems to encourage such a bill, and House Speaker Nancy Pelosi says one will be offered.

While such a bill might pass in the House, its success in the Senate is less likely.  Still, the Democrats see the Court’s shadowy feint at repeal of Roe v. Wade as a winning political cause for them.

Congress has the constitutional authority to shape the Supreme Court’s powers. It could control the use of the shadow docket and even limit the Court’s ability to determine if laws are constitutional.  That power is itself derived from a Court decision in 1803, not from the Constitution.

President Biden has created a commission to look into the Supreme Court.  Should the Court be enlarged to reduce conservative control?  Court packing is not politically popular, but there’s a way to appoint temporary federal judges. They could redress the political balance and then gradually be phased out as vacancies occur.

Whatever comes from the Texas matter, action to reverse the unelected Court’s growing legislative power seems overdue.  For Congress to regain the elected branch’s control of legislation requires the Senate to end the filibuster so that both houses can make decisions by majority vote. 

Anti-vaxers cause ‘collateral damage’ to vulnerable Americans

 

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Gordon L. Weil

“We took important and dangerous action, and inevitably some innocent people were affected,” the battle report says.  It expresses regrets. 

The supposedly unavoidable harm to people who were not the intended target is labeled “collateral damage.”   You’re supposed to shrug it off as an inevitable price that must be paid to accomplish an essential objective.

Covid-19 has produced the same effect, not on some distant battlefield, but across this country.  But it is other people, not the government, who take the action, and they express no regrets.

What has turned out to be overwhelmingly important to many people is not the fight against the coronavirus, but rather their resistance to that fight, even if it causes collateral damage to their fellow Americans.

People refuse to be vaccinated because of their opposition to the kind of government power that can require them to take action for their own good and the well-being of others.  They proclaim their absolute right to freedom.  It may be a case of “my rights are more important than your lives.”

Many people have been hopeful that the vaccines would allow a return to the “old normal,” allowing for travel, crowds, and restaurants.  The unexpected resurgence of the virus, thanks to the Delta variant and the unvaxed, has been difficult to accept.  With that reluctance may have come resistance to masks and shots.

“We don’t seem to care that we have these really high infection rates,” a British professor told the New York Times. “It looks like we’re just accepting it now – that this is the price of freedom.”  Living with Covid 19 may be the “new normal” for some people.

The uncertain messages about the effectiveness of anti-Covid19 measures have inevitably raised doubts.  The scientific community has tried to discover how to deal with a sudden and worldwide deadly virus using its normal methodical process.  Mandating vaccinations usually comes only after years of trial-and-error research.

The result of both the urgency of stemming the abrupt rise in the death rate and the amazing speed in coming up with vaccines may be an overly optimistic hope that Covid 19 could be wiped out quickly. That would have been unprecedented.   The public may now be forced unhappily to accept the absence of an expected miracle.

In the end, Covid 19 can be brought under control. It is possible that the new normal will involve many people continuing to wear masks, required vaccinations, more remote work and less business travel, and the continued growth of retail business conducted online. It may be possible to lead something like normal lives though with a different lifestyle.

In Maine, the state with the oldest population, and in the U.S. as a whole, with an aging population, the lifestyle change is occurring.  Older people are among the most vulnerable to Covid 19 because of reduced natural immunity. Though vaccinated, many must drastically limit their social contacts and travel.

The spread of the coronavirus deprives retirees, who must exercise special care, of the expected benefits of retirement, including family contacts.  The activities they forfeit may never again be possible as they age. 

The effect on life in the retirement years is part of the collateral damage of the failure to fight Covid 19.  Anti-vaxers rob retirees.

Of course, the problems of seniors are not as serious as the increased hospitalization and deaths caused by the community spread of the virus that could be reduced if more of the population was vaccinated and wore masks.  This is the greatest collateral damage.

The costs they impose on others are unheeded by those whose sole concern is their own opposition to wearing a mask or getting a shot. The high-flown assertion of their freedom looks remarkably like simple selfishness.

Making the harm even more dangerous is the political exploitation of the opposition to protective measures.  The governors of Texas and Florida, both rumored to plan on presidential runs, actively oppose masks and vaccinations that would reduce health risks. They appeal to anti-vaxers for their own political gain.

Some pundits and social media multiply the effect.  They exploit news of evolving research to falsely claim that vaccines, proven to work, are not effective.  They promote resistance to any government vaccine, yet come up with unproven, dangerous remedies for those who contract Covid 19.

The emphasis on personal freedom, even at the expense of others, is part of a belief that rights are absolute. While it sounds good, it can be destructive.  Protecting the rights of each person requires some mediating mechanism.  In the U.S., that’s a freely created government.

In the end, the biggest long-term danger from Covid 19 may not be its threat to public health, but the threat posed by its opportunistic opponents to the sense of community that is essential to democracy.