Rights advocates versus public health: voting on vaccination

Gordon L. Weil

On March 3, Maine will vote to decide whether to repeal a new law that removes religious and philosophical exemptions from the requirement that schoolchildren must be vaccinated.

Beyond its implications for public health and religious rights, the vote raises fundamental issues about the role of government and personal liberty.

The U.S. is proud of its emphasis on individual liberty. The underlying purpose of the Constitution is to establish a government that protects individual rights.

In the extreme, the American system would favor as little government as possible to assure that the natural rights of each person would not be limited or eliminated.

Of course, the system could not operate to protect individual rights unless the government had real powers. The government represents the interest of the community, as defined by representatives elected by the people.

In short, the system depends on a balance between individual rights and the common good. The balance is decided democratically.

Most democracies in the world favor the community interests of citizens. The U.S., almost alone, places more weight on the individual rights than on the community. For example, almost no other country protects rights as extensively as the First Amendment.

The fundamental function of government is to ensure public health and safety. It adopts laws to carry out this responsibility, ranging from police powers to measures to prevent the spread of disease.

The Constitution ensures the right of people to practice their religion or no religion according to each person's beliefs. It also bans religions from controlling the laws, though lawmakers may be influenced by their beliefs.

Does that mean the government cannot require individual action if people believe they have a guaranteed right, particularly a religious right?

If so, can the ability of a duly elected government to protect public health or safety be overruled by the right of individuals to follow their beliefs?

The constitutional thinking must have been that people's rights can be limited if they harm the rights of others. Protecting rights should not amount to giving some people higher rights than others.

No right can be absolute. It must take account of its effect on others.

That is the logic of the vaccination law. It says that, whatever your personal rights protecting your beliefs, you cannot block a proven measure that protects others in your community from the risk of serious illness or death.

Opponents of the law dishonestly try to make it seem that it was written to increase the profits of major drug manufacturers. Their gains from selling vaccines are a tiny share of their profits. But the threat of contagious disease to public health is large.

The coronavirus threat apparently arose out of a single market in Wuhan, China. It now affects the entire world and people have died. Preventing the spread of such disease is worthwhile.

But the vaccination debate is part of a far greater issue. The U.S. provides less support for health care and many other human needs than do other democracies. It avoids joint action that could both protect rights and take advantage of a sense of community to promote public well-being.

Opponents of more community action by the government claim that its supporters are socialists who want big government to override individual freedom. Socialism is a dirty word, mainly because the Soviet Union, an outright dictatorship, called itself socialist.

Some voters have been convinced that government action on health care or education or gun safety threatens their individual rights. They see a pure either-or choice.

They worry about excessive government control. Is that the case in Canada or Great Britain? It must be the case, they believe, in Scandinavian countries. What about Switzerland, a country as conservative as the U.S.?

Those who oppose policies designed to benefit all of society out of fear that they will lose their rights gain something and lose something. They may be able to do just as they wish, without regard for others. But they may later suffer when others assert their rights.

Opponents suggest that a free society will produce the best possible results. In a free market, people will only buy from companies that treat their workers well. Perhaps only a few people would be at risk if some refuse vaccinations.

All of this sounds simple, if not simplistic. But it is just what is at stake in the vaccination debate.

The divisiveness now prevalent in American society is the product of people unwilling to compromise for the community good. The risk is that we insist on our rights and ignore our community until we must all pay the price.

Collins not the "deciding vote" on Kavanaugh confirmation

Gordon L. Weil

The biggest issue in the campaign against Sen. Susan Collins may be her vote to confirm Brett Kavanaugh to the U.S. Supreme Court.

An increasingly conservative Supreme Court could reverse the Roe v. Wade abortion decision. Opponents of the Kavanaugh appointment believe he would vote to overturn Roe, ending federal protection of a woman's right to choose.

Recently, the Bangor Daily News reprinted an earlier report about Collins' decision not to oppose Kavanaugh's confirmation. This second look reveals the importance of the issue in this year's Senate campaign.

"After Senator Collins cast the deciding vote to confirm Supreme Court Justice Kavanaugh, her vote has remained fixed in Vacationland’s collective consciousness," the Christian Science Monitor has reported.

NARAL, the leading pro-choice group, focused on "the definitive nature" of Collins' "deciding vote on Kavanaugh's confirmation."

Collins might have reasonably opposed the nominee as unsuitable for a seat on the Court, based on his undisciplined outburst at his confirmation hearing, but she approved him. She said she was reassured by his recognition that Roe v. Wade was "settled" law.

Pro-choice voters are gravely disappointed by Collins, who had a generally favorable record on abortion-related issues, for seeming to abandon her past views to support President Trump's conservative nominee.

But her opponents are not correct when they say Collins cast the deciding or decisive vote to confirm Kavanaugh. That may have been the chosen role of another senator. Here's the story.

Of the 100 senators, there were 51 Republicans, 47 Democrats and two independents who vote with the Democrats. One of the independents is Maine's Angus King.

Before Collins announced her position, 97 senators had announced their choice. The count was 49-48 in favor of confirmation.

GOP Sen. Lisa Murkowski of Alaska, having just decided, then announced she would vote against the nomination. At that point, the vote was 49-49 on the nomination.

Only Collins and Democratic Sen. Joe Manchin of West Virginia had not yet announced their votes.

After a lengthy explanation, Collins revealed she would vote to confirm. The vote stood at 50-49 in favor.

Minutes later, Manchin announced he, too, would vote for Kavanaugh, effectively canceling the effects of Murkowski's move. Kavanaugh was confirmed.

(In effect, the vote was 51-49 for confirmation. In fact, the final vote was 50-48. Murkowski withheld her vote as a courtesy to a fellow Republican favoring confirmation, who was unable to be present.)

If Collins had opposed Kavanaugh, the vote would have stood at 49-50 against. If Manchin had then joined her, the matter would have been settled at 49-51, and Manchin would have blocked Kavanaugh.

If Manchin had voted to confirm with Collins opposed, the vote would have been 50-50. Under the Constitution, Vice President Mike Pence would have broken the tie to confirm Kavanaugh.

To believe that Collins would cast the deciding vote, you have to believe that Manchin would follow her lead. He didn't. Even if Collins knew how he intended to vote, she could not have blocked confirmation; especially when he chose to vote last.

Manchin was facing a tough re-election in what has become one of the most Republican states. He was one of only three Democrats who had voted for Neil Gorsuch, Trump's earlier Supreme Court nominee and equally a concern on abortion, as had Collins.

If he had voted with the Democrats against Kavanaugh, he would have also assured the confirmation, by leaving it to Pence. The GOP would get its judge, but he would not have cast the decisive vote. His vote for confirmation produced the same result but got him more attention back home.

If there was a senator who cast the deciding vote on Kavanaugh, it was Joe Manchin.

Here's an historic parallel. In the 1868 Senate trial of President Andrew Johnson, the Republicans failed to convict him by a single vote. Seven Republicans voted to acquit. Any one of them might have been decisive, but the only one who history counts as decisive is the one who voted last.

Democrat Manchin's tactic paid off, and he was narrowly re-elected in his overwhelmingly GOP state. Collins remains vulnerable in Maine for her vote.

On March 4, the Supreme Court will hear a case about a Louisiana law that would effectively outlaw abortions in that state. If Kavanaugh hints at an anti-abortion position at that hearing or in the Court decision, expected by the end of June, he could damage Collins' credibility.

If the Court dodges the issue on technical grounds, it might seem to be avoiding it in an election year. If it firmly rejects the Louisiana law with Kavanaugh's vote, Collins could get a boost.

Although Collins did not, in fact, cast the decisive vote on Kavanaugh, he could cast a decisive vote affecting her.

Washington's legacy wanes under self-proclaimed 'greatest' president

Gordon L. Weil

On Monday, we celebrate George Washington's official birthday.

Each year on this occasion, I remind readers that Washington's Birthday is the legal U.S. and Maine government holiday. In remembering all presidents, some outright failures, the day meant to honor Washington has become "Presidents' Day," a commercial holiday.

Upon taking office as president, Washington realized that he would set precedents for his successors and have a deep impact on his country's political evolution.

The presidency had been designed for Washington, after he had turned down the opportunity to be the new American king. He was committed to the republican form of government in which the people, not the monarch, would be sovereign.

This new form of government existed nowhere else in the world and consequently, the American system of government was considered an "experiment." It still is.

Washington was its first leader, though the founders were wary of a president with powers to rival a king. Washington set out to limit the exercise of his authority, often deferring to congressional policy initiatives. He did not believe the Constitution gave him unlimited power.

He created the presidential cabinet and believed in executive privilege when it came to his communications with department heads. Still, he said that privilege did not apply in cases of impeachment.

President Washington put people who shared his views on the Supreme Court. Long after the opposition party led by Thomas Jefferson took control of the federal government, Washington's Federalist appointees dominated the Court.

Washington believed in “big government.” During the Revolutionary War, he had depended on voluntary state financial and military contributions. The experience made him a supporter of a strong national government.

He agreed with constitutional drafters who argued that the United States could only become a great nation if powers were transferred from the states to the federal government. He advocated the expansion of the government he led.

He faced strong opposition from those worried that the national government would override states’ rights and individual freedoms. Washington accepted the Bill of Rights as an essential part of the deal to make a new country.

Washington worried about the growth of political parties that he witnessed. He predicted “the spirit of revenge, natural to party dissension ....” He concluded that strong partisanship could undermine the functioning of government.

In proposing an accord with the British, his former enemy, Washington subscribed to a view later formulated by a British statesman: "Nations have no permanent friends or allies, they only have permanent interests." Jefferson and his supporters disagreed, years later launching the disastrous War of 1812 against the British.

Jefferson attacked him openly. Though Washington would ultimately cut off contact with him, he refrained from any personal attacks on his fellow Virginian. Such values seem lost in today’s politics.

In a country populated mostly by white Protestants, he advocated equality for all groups. He even opposed the use of the word "tolerance," because it implied the superiority of one group over others.

Washington, a southern slave owner, agonized over slavery. He recognized that the country might break apart over the issue. If it did, a friend reported in 1795, "he had made up his mind to remove and be of the northern."

He believed that slavery would disappear as the nation's economy developed, though he was overly optimistic about its end. He recognized that the future lay in the development of wage labor in manufacturing, already beginning in the North.

Thus, 70 years before Lincoln's willingness to compromise on slavery to save the Union, Washington used his national standing to hold the country together. His will freed his slaves soon after his death, and, against Virginia law, he left money for their education.

He resigned as general, accepted no pay as president and declined to serve more than two terms. When Britain’s King George III, America’s old enemy, was told that Washington would walk away from high office, he said, “If he does that, he will be the greatest man in the world.”

No American has ever enjoyed more prestige in his own lifetime than Washington. But he wore the mantel of power with modesty and showed great respect for the views of others.

Perhaps above all, Washington created the aura of the presidency. As chief of state as well as partisan head of government, he believed the president should try to represent all Americans and the national interest.

Since his time, most presidents have tried to retain that dual role. But his legacy wanes in bitter partisanship promoted by the self-proclaimed "greatest" president. Washington's successor next year may face the task of restoring the presidency itself.

Trump badly erred, but Senate lets voters decide on his removal

Gordon L. Weil

Words spoken by two Republican senators fairly summarize the impeachment experience.

Sen. Lisa Murkowski of Alaska stated sadly, “Given the partisan nature of the impeachment from the very beginning and throughout, I have come to the conclusion that there will be no fair trial in the Senate.”

Sen. Marco Rubio of Florida, concluded, “Just because action met a standard of impeachment does not mean it is the best interest of the country to remove a president from office.”

The bottom line in the House was that impeachment was political.  By giving the impeachment power to the House and requiring only a simple majority, the founders well understood they were allowing for charges against the president that could be entirely partisan.

The situation is different in the Senate.  By requiring a two-thirds majority to convict, the Constitution almost mandated the agreement of members of both parties.  This requirement raises the level of the proceeding beyond simple partisan politics to an issue of the greatest national importance.

The House Democrats must have known that they could not get the Senate to convict Trump.  They may have calculated that by revealing his effort to get Ukraine to help his campaign, they would gain support in November. 

Their case suffered from being thin, based only on the withholding from Ukraine of desperately needed military aid in an effort to get its president to undermine Joe Biden, then Trump's most likely opponent.  The Democrats avoided obstruction of justice issues raised in the Mueller report or the emoluments clause, relating to his profiting from the presidency.

They tried to use the stark revelations by John Bolton, former national security advisor, of Trump's direct involvement to buttress their case, but he came forward too late.

Republican senators have become dependent on Trump's popularity and would not likely oppose him so close to an election.  The case was not flagrant enough to detach them from partisanship.

Trump has continually violated so many governmental norms that it was difficult for the Democrats to show his attempt to get political help from Ukraine was extraordinary enough to remove him from office.  To some degree, both Washington and voters had become accustomed to Trump's expansive tactics and frequent lies.

It was obvious that at least some GOP senators believe Trump is guilty of the charge made against him.  Despite their trial support, they cite technicalities to put distance between themselves and the president. 

Whatever he may claim, it is evident that Trump was not exonerated in the minds of a Senate majority.

Murkowski called his behavior "shameful and wrong."  Impeachment at least elevated the issue of foreign involvement in elections.  That alone may have been worth the effort.

Republicans claimed that the Democrats had always sought to reverse the 2016 election results and remove Trump from office.  That's an almost irrelevant argument, because an election cannot be reversed, Trump has been president for three years and the loss of the president is covered by electing a vice president as well.

 

Because both the House and Senate votes were almost purely political, the arguments for and against Trump, some bordering on the absurd, become less important in an historical context. 

Little has been done that is likely to have a lasting constitutional effect, any more than the Clinton impeachment did.  In perspective, Clinton looks purely political and almost nobody remembers the legal arguments.

The impeachment experience has educated some voters about the lengths of Trump's efforts to justify his 2016 upset win and use the 2020 election to confirm its validity.  The Democrats see his open willingness to accept foreign help in a U.S. election as a major negative that can be exploited to their advantage.

Trump's gamble, which he could win, is that voters appreciate the state of the economy, leading them to overlook his possible constitutional violation.  The GOP appears to believe that most people won't care about his Ukraine move.  It is possible many voters saw impeachment as political and boring.

With the benefit of hindsight, House Speaker Nancy Pelosi might have chosen to hold a vote of censure of the president.  Censure could have been voted by the House without requiring additional Senate action.  But it might have sparked a similar effort in the Senate, where only a 51-vote majority would be required, not the two-thirds needed for removal.

But a House vote of censure and a Senate attempt, successful or not, might have done as much politically for the Democrats as political impeachment-acquittal.  It would have also put pressure on GOP senators, like Susan Collins, who thought Trump had made a serious mistake, though insufficient for removal.