Posts published in June 2020

Yes, Let’s Rewrite History—Just Don’t Falsify It While Doing So

Yes, Let’s Rewrite History—Just Don’t Falsify It While Doing So

By John R Guardiano on June 27, 2020

Historical Revisionism is nothing new and it’s actually a good thing. The falsification of history, however, is a more recent development; and that, obviously, is a bad thing.

On both the left and the right today, there’s a lot of concern about “rewriting history.”

“The entire effort to rewrite American history makes my blood boil,” writes a reader in the Fence Post, a nationwide agricultural newspaper that reaches more than 80,000 readers weekly.

“The Civil War happened. That’s a historic fact… The history of the Civil War will not go away just because it’s protested today.”

A left-wing writer, likewise, complains that the Democratic Party “is clearly uninterested in truth or accountability, and is more than willing to rewrite history to advance its political goals.”

Why does the writer say this? Because President Obama had the audacity this week to praise his predecessor, George W. Bush, for having “a basic regard for the rule of law and the importance of our institutions of democracy.”

Balderdash! says the writer, and Obama should know better.

Rewriting v. Falsifying. Of course, what these and other observers are criticizing is not the rewriting of history per se, but rather the falsifying of history as they see it. In truth, history is constantly being rewritten in light of new events and circumstances to glean lessons from the past.

This is a good and laudatory thing and something that should be encouraged.

Some of the best history, in fact, is history that has been rewritten by historians who look back upon our past from a new angle or fame of reference to draw insights that may have been hidden or obscured by previous interpretations of history.

In 1957, for instance, an unknown assistant secretary of the Board of Governors of the Federal Reserve, Bray Hammond, wrote a magisterial history, Banks and Politics in America: From the Revolution the Civil War, that completely upended the history of Andrew Jackson and the Jacksonian era in American politics.

In so doing, Hammond took direct aim another great work of history, The Age of Jackson, by the acclaimed Harvard historian, Arthur M. Schlesinger, Jr. The Age of Jackson (1945) was itself a work of revisionist historical scholarship that won rave reviews.

Both Hammond and Schlesinger, in fact, won the Pulitzer Prize for History for their respective books and have contributed mightily to our historical understanding.

Both books were sincere, good-faith attempts to interpret and make sense of the past. However, they employed contrasting analytical frameworks that created widely divergent narrative histories.

For Schlesinger, the Age of Jackson was all about class conflict and the efforts by the working and laboring classes to seek redress from the government against business domination and control. In so doing, Schlesinger argued, Jackson was the precursor to Franklin Roosevelt and the New Deal.

Schlesinger thus broke from the previously dominant historical narrative, which argued that sectional differences, not class differences, defined American politics in the Age of Jackson; and that Jackson himself was the political embodiment of the country’s ascendant western frontier.

Hammond, meanwhile, offered an altogether different interpretation dubbed the entrepreneurial thesis.

Hammond argued that the Jacksonian era was, indeed, defined through class conflict. However, the class conflict pitted not the laboring classes against the business interests, but rather a new class of entrepreneurs and speculators who conspired against the old monied interests. This new class was eager for easy money to fuel their entrepreneurial and speculative ventures.

The Jacksonians, Hammond argued, employed virtuous and high-minded democratic rhetoric to conceal their true motives and true objectives, which were self-interested and self-serving. And the end result of their attack on America’s Second National Bank, Hammond wrote, were economically damaging and reverberated for decades.

All three of these historical interpretations—the initially dominant sectional conflict thesis, Schlesinger’s class conflict thesis, and Hammond’s entrepreneurial thesis—involved rewriting history.

However, none of these interpretations involved falsifying history, and that is a crucial distinction. The essential historical facts in question were all agreed upon and not in dispute.

What was in dispute (and still is to a considerable extent) is how to interpret and apply those facts to our understanding of history.

To be sure, sometimes newly discovered facts are unearthed that alter our understanding of history. That certainly was the case with Banks and Politics in America: From the Revolution the Civil War.

Because he worked for the Federal Reserve, Hammond understood banking and finance in a way that Schlesinger and previous historians simply did not. Thus he was able to bring to light new facts that helped to explain how the Second Bank worked and what its demise meant for the U.S. economy.

Still, in the main, the disagreements here are not about the facts of history; they are about the interpretation and application of those facts.

False History. This is not to say that all interpretations of history are equally valid or legitimate. To the contrary: there is such a thing as bad, biased, and simply false history or historical writing. Howard Zinn’s A People’s History of the United States comes to mind.

Historian Michael Kazin (no conservative, by the way, but rather, a man of the left) called A People’s History “a Manichean fable… better suited to a conspiracy-monger’s website than to a work of scholarship.” Another reviewer called the book “absolutely atrocious agit-prop.”

In short, Zinn was a Marxist political activist, not a serious and fair-minded historian, and there is real difference between these two types. But for serious historians, disagreements in interpretation and analysis can be legitimate and illuminating.

The real risk is that an historian can become so blinded by his frame of reference that he distorts or falsifies history by omitting or glossing over other critical facts and perspectives that complicate or contradict his thesis.

James Bouie. This is what appears to have happened to New York Times columnist Jamelle Bouie.

Although Bouie is a journalist, and not an historian per se, he is, nonetheless, a serious student of history. However, in his zeal to argue that America’s black slaves were not simply passive victims, but instead, had real agency and self-awareness, he offers up a very bad and inaccurate historical account.

“Neither Abraham Lincoln nor the Republican Party freed the slaves,” Bouie brazenly asserts in a recent column.

They helped set freedom in motion and eventually codified it into law with the 13th Amendment, but they were not themselves responsible for the end of slavery. They were not the ones who brought about its final destruction.

Who freed the slaves? The slaves freed the slaves.

This is complete nonsense. As National Review’s Dan McLaughlin points out in a thorough debunking of Bouie’s thesis:

Bouie is right that black Americans played a significant role in contributing to the abolitionist movement, the escalating sectional tensions that led to secession, the transformation of the Civil War in the North from a war for the Union to a war of liberation, and the Union’s victory.

He is wrong to claim that those contributions in and of themselves were enough to bring about the end of slavery, and that Lincoln, the Republicans, the Union Army, and the majority of the American population were merely passive conduits, bobbing like a cork on the unstoppable streams of history.

Bouie skips the crucial step. All the abolitionist agitation in the world only mattered because the people with real political, military, cultural, and economic power in America—the federal government, Northern state governments, the military, the churches, the leaders of the economy, and ultimately, the voting public—eventually chose to side with the abolitionist movement.

It was not a given that they would; in the 1820s and 1830s, they had chosen not to.

In short, Bouie took a legitimate historical insight—that America’s black slaves helped to effect their emancipation—and blew it up into a holistic explanation when it quite obviously is nothing of the sort.

Historical Moment. So, what does this have do with our present political and historical moment?

Well, American history today is under fire and under review in a way that it has not been in quite some time if ever. Indeed, the very legitimacy of the American founding is being called in to question, as “woke,” left-wing radicals seek to advance a far-left agenda.

For this reason, we are seeing historical statues and monuments being toppled, vandalized and defaced as new historical narratives are introduced into the public debate and foisted upon the public.

In key respects, these new historical narratives are really not new. They’ve been adopted in colleges and universities, elementary and secondary schools, for decades, and they are not entirely bad.

They typically give greater historical weight to the experiences of blacks, Indians or native Americans, women, and other marginalized groups.

Cultural Marxists. But as with Howard Zinn’s People’s History and James Bouie’s column, these narratives often are highly politicized and distorted, and designed to advance an explicitly left-wing political agenda.

Their intent is to deconstruct America and create a new country that will embody Marxian and socialist ideals.

But whereas Marx believed that capitalism could be undermined by appeals to the proletariat or working class, his modern-day heirs recognize that America’s greatest source of vulnerability and weakness lie in its racially troubled past; and that appeals to white guilt and black racial grievance are far better suited to deconstruct and remake the United States.

This means that we should be wary and discerning of new historical narratives, and equally wary and discerning of historical groupthink and consensus.

Simplistic and reductionist histories that attempt to explain the past through one narrow prism are especially suspect. History, like life itself, is complicated and typically results from a variety of sometimes seemingly irreconcilable factors and decisions.

All of us, moreover, are going to have to become better consumers of history. This means referring to source documents—many of which are available on the Internet—and making our own assessments of the past.

Patriots, meanwhile, liberal and conservative, must engage in their own historical revisionism. We must rewrite history for a new generation of Americans: poorly educated, ill-informed, and lacking in historical knowledge and perspective.

This new generation has been fed a lie—to wit: that American history is a source of shame; and that Western Civilization itself is a mistake that must be corrected. But in truth, what must be corrected is this false and dangerous narrative.

That means rewriting history in light of modern-day circumstances to illuminate the past for a people increasingly haunted by the darkness.

Feature photo credit: Historian Arthur M. Schlesinger Jr. via the Washington Examiner.

Why We Should Retain Confederate War Memorials and Statues

Why We Should Retain Confederate War Memorials and Statues

By John R Guardiano on June 24, 2020

To simple-minded critics trying to score cheap political points, the statues and monuments are all about “racism” and “white supremacy.”

To historians with a deeper and more profound understanding, it is all about recognizing the debt that we owe our ancestors.

Is there any good or legitimate reason to honor and celebrate soldiers who fought for the South in the Confederate States Army? Or is doing so simply a reflection of “racism” and “white supremacy”?

This is the crux of the issue that hangs over the movement to remove Confederate War memorials and statues.

To modern-day political and cultural elites, the answer is obvious: Because the Civil War was fought over slavery, racism and white supremacy necessarily impugn the Confederates. Nothing more need be said. The monuments and statues must go.

As Max Boot puts it:

When we celebrate Confederates, we do so because of their racism. By contrast, when we celebrate other great Americans, from Jefferson to Theodore Roosevelt, we do so despite their racism. That’s a crucial distinction that should not be lost in the heat of the moment.

Boot is a military historian who has written some fine works of military history. But the distinction that he draws here is ludicrous, utterly ahistorical, and in defiance of all reason.

In fact, Boot should know better than most why there is and ought to be an honored place in the pantheon of American history for the Southern soldiers of the Confederacy and why we ought to honor them with statues and memorials.

Martial Valor. The reason, obviously, has nothing to do with racism and white supremacy. Instead, it has to do with the courage, skill, valor, and tenacity of the Southern soldiers.

Their boldness, bravery, and derring-do against a larger, better-equipped, and more plodding Union Army determined to unimaginatively grind them into extinction was truly laudatory and heroic.

Indeed, as James Webb points out in his superb book, Born Fighting: How the Scots-Irish Shaped America:

The Southern army was a living thing emanating from the spirit of its soldiers—daring, frequently impatient, always outnumbered, often innovative, relying on the unexpected, and counting on the boldness of its leaders and the personal loyalties of those who followed.

The Northern army was most often run like a business, solving a problem. The Southern army was run like a family, confronting a human crisis.

The South, Webb explains,

saw 90 percent of its adult male population serve as soldiers and 70 percent of these became casualties, some 256,000 of them dead, including, astoundingly, 77 of the 425 generals who led them.

The North, by contrast, lost 365,000 soldiers and 47 of its 538 generals, a casualty rate in each case less than half that of the South.

The men of the Confederate Army gave every ounce of courage and loyalty to a leadership they trusted and respected, then laid down their arms in an instant—declining to fight a guerrilla war—when that leadership decided that enough was enough.

Slavery. But weren’t the Southerners fighting for an evil cause, slavery, and doesn’t that necessarily mean they dishonored themselves and are unworthy of our respect and admiration?

In a word, no. As Boot well knows, one of the main tasks of an historian is to understand the actions of historical figures through their eyes and within the context of their time.

While it is indisputably true that the Civil War was fought over slavery, it is equally true that the vast majority of Southerners did not own slaves and did not see themselves as fighting on behalf of slavery.

In fact, less than five percent of Southerners owned slaves; and, according to historian John Hope Franklin (quoted by Webb):

Fully three-fourths of the white people of the South had neither slaves nor an immediate economic interest in the maintenance of slavery or the plantation system.

“To tar the sacrifices of the Confederate soldier as simple acts of racism, and reduce the battle flag under which he fought to nothing more than the symbol of racist heritage,” Webb writes, “is one of the great blasphemies of our modern age.”

Resisting Aggression. “Why, then, did he [the Southern soldier] fight?”

Again, Webb explains:

It might seem odd in these modern times, but the Confederate soldier fought because, on the one hand, in his view he was provoked, intimidated, and ultimately invaded, and, on the other, his leaders had convinced him that this was a war of independence in the same sense as the Revolutionary War.

For those who can remove themselves from the slavery issue and examine the traits that characterize the Scots-Irish culture, the unbending ferocity of the Confederate soldier is little more than a continuum.

This was not so much a learned response to historical events as it was a cultural approach that had been refined by centuries of similar experience.

The tendency to resist outside aggression was bred deeply into every heart—and still is today.

For readers unfamiliar with what Webb means here, he is referring to the historical experience of the Scots-Irish. They had been fighting for centuries dating back to Roman times, when their Celtic ancestors refused to submit to Roman conquest, choosing instead to “die on the battlefield with sword in hand.”

The Scots-Irish eventually made their way to America, where they retained a ferocious sense of independence, pride and self-sufficiency. And, because of their distinguishing warrior ethos and history, they formed the backbone of the U.S. military, from the time of the American Revolution through the Civil War and even today.

“The bulk of the Confederate Army, including most of its leaders, was Scots-Irish, while the bulk of the Union Army and its leadership was not,” Webb writes.

“No one but a fool—or a bigot in their own right,” he adds—“would call on the descendants of those Confederate veterans to forget the sacrifices of those who went before them, or argue that they should not be remembered with honor.”

Distinctions. Ironically, Boot prides himself on making “fine distinctions” to determine whether someone should be honored with a statue or memorial.

“The rule of thumb,” he says, “should be that those who contributed a great deal to the development of our country deserve to be recognized, however flawed they were as human beings.”

That sounds reasonable. Yet, Boot seems clueless about the genuinely great contribution to our country made by the Scots-Irish and other white Southerners who fought in the Confederate Army.

Their contributions—to the American military specifically to American culture more generally—were and are, as Webb well describes, deeply felt and long-lasting.

Evil. Moreover, although he prides himself on making “fine distinctions,” Boot makes no distinction between the American South and Nazi Germany. Both are evil, he says.

But of course, the United States is not now and never was Nazi Germany, and the American South was and is part of the United States.

There are, needless to say, huge differences, ideologically and morally, between a country (Nazi Germany) engaged in genocidal world conquest and a region (the American South) seeking to resist (Northern) domination and retain its independence while holding on to an institution (slavery) that had been practiced and accepted for millennia, worldwide and since ancient times.

This is not to suggest that slavery was anything less than an abomination. Instead, it is to say that historical perspective, context, and understanding are necessary, important and required—and Boot, an accomplished historian, should understand this.

As Webb points out:

The greatest disservice on this count has been the attempt by these revisionist politicians and academics to defame the entire Confederate Army in a move that can only be termed the Nazification of the Confederacy…

The syllogism goes something like this: Slavery was evil. The soldiers of the Confederacy fought for a system that wished to preserve it. Therefore they were evil as well, and any attempt to honor their service is a veiled effort to glorify the cause of slavery…

It goes without saying—but unfortunately it must be said—that morality and decency were traits shared by both sides in this war, to an extent that was uncommon in about any other war America has fought.

Webb quotes the esteemed historian Henry Steele Commager:

The men in blue and gray… had character. They knew what they were fighting for, as well as men every know this, and they fought with a courage and tenacity rarely equaled in history…

Both people subscribed to the same moral values and observed the same standards of conduct. Both were convinced that the cause for which they fought was just—and their descendants still are.

In short, we can argue about the merits of this or that particular statue or memorial. However, there should be no doubt that the men who fought for the South in the Confederate Army deserve our respect and admiration.

They deserve to be honored, commemorated and memorialized. And a country that appreciates its inheritance and recognizes the sacrifices of generations past should understand this.

Feature photo credit: Jim Webb (left) via Politico and Max Boot (right) via the Washington Post.

Stop the ‘Progressive’ Mob and Understand American History Before Removing Statues and Monuments

Stop the ‘Progressive’ Mob and Understand American History Before Removing Statues and Monuments

By John R Guardiano on June 21, 2020

Americans’ historical ignorance and defensiveness about race have given the mob the upper hand. This must change or America will cease to exist.

Hardly a day goes by when we don’t hear about another historical monument or statue being vandalized, defaced, toppled, or destroyed by angry mobs of left-wing “woke” activists determined to exorcise from the public sphere alleged “racists,” “imperialists,” “bigots,” “misogynists,” and “traitors.”

This is grievously wrong. No matter how you feel about the relative merits of a particular statue or monument, no one has a right to destroy these artifacts of history.

If they are to be taken down, that should happen only after much deliberation and through the lawful and legitimate political process, not through violent, lawless, and destructive mobs.

Federal, state and local officials deserve our contempt for their knowing refusal to protect our nation’s historical monuments and statues from vandalism and destruction. This is nothing less than a rank dereliction of duty.

Wanton Destruction. Friday night, for instance, police officers from the Metropolitan Police Department in Washington, D.C. watched and did nothing as a progressive mob used rope and chains to topple a statue of Confederate General Albert Pike before setting the statue on fire.

It is fairly obvious that this entire Jacobin effort is aimed at deconstructing and delegitimizing the American Founding and Western Civilization.

The mobs, after all, make few if any distinctions. Thus they have targeted any and all historical figures found guilty, it seems, of sinning against 21st Century progressive orthodoxy.

Indeed, the list of targeted figures includes: George Washington, Christopher Columbus, Ulysses S. Grant, Francis Scott Key, Catholic missionary Junipero Serra, and Winston Churchill.

Historical Ignorance. Unfortunately, most Americans—even, and perhaps especially, those with elite academic credentials—are poorly educated.

That is because for decades now, secular progressive orthodoxy has infused American education, from kindergarten through college, with a self-hating, anti-American and anti-Western bias.

Consequently, most Americans are defensive at best and all-too credulous at worst when the progressive mob accuses iconic American and Western historical figures of being the moral equivalent of Adolph Hitler.

And of course, the worst thing that you can be called in 21st Century America is a “racist.” That is the ultimate scarlet letter in our politics today. For these reasons, the progressive mob is having its way and running amuck and unopposed.

Distinctions. Meanwhile, some public figures of good faith are trying to draw distinctions that they believe are legitimate, and which will protect, say, George Washington and Winston Churchill, while sacrificing more debatable figures such as Confederate War General Nathan Bedford Forrest.

I understand and respect this sentiment, but appeasing the mob is a mistake. This will only strengthen and embolden the mob.

Indeed, now is not the time to try and draw distinctions between allegedly legitimate and illegitimate statues and monuments. Now is the time to circle the wagons and to unalterably oppose the mob and its wanton acts of destruction.

Now is the time to try and understand our history and why these statues and monuments were created and erected in the first place. Then and only then should we consider taking down (not destroying) any of our historical statues and monuments.

The Confederacy. The most vulnerable pieces of art and remembrance are those that pay tribute to Confederate soldiers and generals. I will address these in a separate piece.

But what is worth noting now is that the vast majority of Confederate soldiers did not own slaves and did not see themselves as fighting on behalf of slavery.

Why, then, did they fight; and why do we have statues and monuments that honor them?

Isn’t that something we should understand, discuss and debate before removing these artifacts of history? And in any case, can we not all agree that mob vandalism and destruction of our nation’s history is unacceptable and will not be tolerated?

The End. If what historian Arthur Schlesinger Jr. called The Vital Center doesn’t speak up soon in defense of the American experiment, then the America we have known and loved for more than two centuries will cease to exist.

Of course, that’s exactly what the progressive mob wants.

Feature photo credit: KTVZ.com—the toppled statue of George Washington in Portland, Oregon.

Three Reasons Conservatives Should Not Despair Over the Supreme Court’s Title VII Decision

Three Reasons Conservatives Should Not Despair Over the Supreme Court’s Title VII Decision

By John R Guardiano on June 17, 2020

In the wake of Bostock v. Clayton County, conservatives are disappointed and fearful. Here’s why they should temper their pessimism and perhaps even be optimistic.

The Supreme Court’s ruling Monday (June 15, 2020) in Bostock v. Clayton County has ignited understandable disappointment and fear among conservatives, especially religious conservatives.

Conservatives are disappointed that two generally conservative justices, Gorsuch and Roberts, sided with the Court’s four left-wing justices to find new and hitherto unknown meaning in Title VII of the Civil Rights of 1964. Gorsuch, in fact, authored the majority opinion.

Title VII prohibits employment discrimination “because of” an individual’s “race, color, religion, sex, or national origin.” Now, however, because of the Court’s decision, Title VII also prohibits employment discrimination because of sexual orientation or gender identity.

For many Americans, especially those of a more secular bent, this is really not a big deal. After all, as David French observes at The Dispatch,

A combination of company policies and state and local laws have led to workplaces that already refused to discriminate on the basis of sexual orientation or gender identity.

For religious institutions, however, the consequences are potentially dramatic.

Should Christian colleges and schools be subject to lawsuits for upholding church teachings on human sexuality?

Does this case mean that the law now views Christians as akin to klansmen, and thus brings religious institutions one step closer to losing their tax exemptions?

This is a legitimate concern. Every major religion that I am aware of—Christianity, Judaism, Islam, Buddhism, Hinduism, certainly—contains longstanding proscriptions on sodomy and homosexual behavior.

But if these proscriptions are now considered unlawful discrimination, then what is to become of religious liberty in America?

This is hardly an academic matter. Religious liberty cases, in fact, are very much in dispute today, as religious institutions and religious believers who seek to live out their faith fight back against charges that they are unlawfully “discriminating” against gays and lesbians.

Whither Originalism? Moreover, if even conservative or originalist justices like Gorsuch and Roberts can essentially rewrite legislative statutes to comport with left-wing secular orthodoxy, then what is to become of the separation of powers, democratic self-rule, and the restoration of Constitutional government?

This, too, is a legitimate concern, as the courts continue to make legislative decisions that are well beyond their purview. The discovery of a hitherto unknown Constitutional right to homosexual marriage in Obergefell v. Hodges (2015) is the most recent example of this worrisome, decades-long trend.

Still, I think the pessimism that many conservatives feel right now—and which I share to a considerable extent—must be tempered by three important considerations.

1. Statutory Decision. Because Bostock v. Clayton County is a statutory and not Constitutional decision of the Court, it can be altered, changed or modified by new Congressional legislation.

True, because the cultural zeitgeist is decidedly secular and hellbent on stopping anything that might conceivably be called “discrimination” against allegedly oppressed or disadvantaged groups, legislative changes to Title VII are unlikely.

That, however, doesn’t change the fact that, unlike the Court’s Constitutional decisions, Bostock v. Clayton County does not preempt and deny democratic decision-making by the American people.

Indeed, Congress still has the right and responsibility to define the parameters and limits of anti-discrimination law.

2. As French points out:

[In his decision], Justice Gorsuch goes out of his way to reassure that the guarantee of free exercise of religion “lies at the heart of our pluralistic society.”

Provisions in Title VII itself provide limited religious liberty protections, the First Amendment is of course still applicable, and—as Gorsuch notes—the Religious Freedom Restoration Act also acts as a “kind of super statute, displacing the normal operation of other federal laws.”

Moreover, there are a series of cases already on the court’s docket that are likely (based on judicial philosophy and court trends) to [protect religious liberty to a considerable extent].

In short, the First Amendment guarantee of religious liberty, specific provisions within Title VII itself, and the Religious Freedom Restoration Act all may trump Bostock v. Clayton County in specific cases and controversies soon to come before the Court.

“Stay tuned!” says French.

A year from now, the jurisprudence could look largely like this: Secular employers are fully subject to each element of Title VII while religious employers enjoy a broad ministerial exception and a more robust free exercise clause.”

3. Textualist Decision. While there can be no doubt that the Court has written new meaning into Title VII—a meaning that no one who drafted or voted on the legislation in 1964 ever imagined—it did so for explicitly textualist reasons—that is, reasons grounded in the plain meaning of the statute itself.

This is very different from most left-wing jurisprudence (such as the infamous 1973 Roe v. Wade abortion-rights decision), which makes little or no pretense to being tethered or moored to the Constitution or legislation that it purports to interpret and apply.

So while conservatives certainly can lament the result of the Court’s decision in Bostock v. Clayton County, they should be comforted by the fact that the majority nonetheless reached its decision in an explicitly originalist manner.

This originalist argument may be a complete ruse. It may be, as Justice Alito declared in his forceful dissent, “a pirate ship [that] sails under a textualist flag,” while, in fact, representing “the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”

That may well be true. But just as hypocrisy is the tribute that vice pays to virtue; so, too, is a faux textualism the tribute that left-wing or progressive justices pay to originalist or conservative justices.

In other words, although conservatives may have lost this particular case, we seem to have won the larger-scale war over Constitutional and statutory interpretation if even left-wing or progressive justices feel obligated to justify their decisions on explicitly textualist grounds.

This doesn’t mean that the Court will always decide in our favor; however, it certainly increases the likelihood that it will.

More importantly, the recognition by the Court that it must tether its decisions to specific provisions of the Constitution and close and faithful readings of legislative statutes acts as an inherent constraint on judicial activism.

This helps to contain the Court’s more wildly progressive impulses and desire to legislate from the bench. This, obviously is a good thing that portends well for future Court decisions.

The bottom line: don’t be too despairing over Bostock v. Clayton County. While the result in this case is regrettable and worrisome, all is not lost. This is one case that hinges on one statute. And while its effects will be longstanding and widespread, the damage can be contained by both Congress and the Court in future legislation and in future cases.

Congressional action is highly unlikely; but future Court decisions are inevitable and much more likely to protect religious liberty. The Court, meanwhile, seems to have accepted a more modest and limited role for itself by basing its decision on explicitly textualist grounds.

Granted, this modesty may not be apparent in this decision—a decision Justice Alito derides as a “brazen abuse of our authority to interpret statutes.”

Still, by acknowledging that its decisions must be tethered and moored to explicit Constitutional and legislative provisions, the Court implicitly recognizes that there are real limits to what it can do—limits that likely will become increasingly apparent over time.

Stay tuned.

Feature photo credit: Justice Neil Gorsuch in The Federalist.

The Questions No One Dares to Ask About ‘Systemic Racism’ and ‘Police Reform’

The Questions No One Dares to Ask About ‘Systemic Racism’ and ‘Police Reform’

By John R Guardiano on June 14, 2020

Before we rush forward to enact new legislative “reforms” we should step back to ask important and searching questions.

Excuse me, but may I ask a question? Or rather, a series of questions?

Oh, I know that no one today has much time for questions: because the loudest voices, in our newsrooms and out in the streets, are too busy telling us what the answers must be.

And, unlike the activists, the politicians, the pundits, the sports stars, and assorted other know-it-alls, I don’t pretend to have all the answers. However, I do have some pertinent—and perhaps unwelcome and inconvenient—questions to ask.

May I?

Thank you. I won’t take much of your time. I promise.

Federalism

1. Should the federal government micromanage state and local police departments and law enforcement agencies?

2. Does federalism matter, and might federalism help us determine which reforms work and which ones don’t?

Legislating Police Practices

3. Do we have a problem with specific police practices, such as chokeholds and no-knock warrants?

Or, instead, do we have a problem with specific police officers, such as Derek Chauvin, who misuse and misapply those practices?

4. Did Officer Chauvin kill George Floyd with a choke hold or by pressing his knee into his neck?

5. If the problem is specific police officers such as Chauvin, then why focus on stopping certain practices? Why not focus on recruiting better officers, training them better, and screening out bad officers?

6. Rather than ban or proscribe certain police practices, might we do well, instead, to train officers to use better, less dangerous, and more effective practices by which to subdue and control suspects?

7. Will legislation designed to outlaw or ban specific police practices actually end police brutality or make much of a difference? Or will bad police officers still find ways to commit egregious acts of wrongdoing?

8. Fox News host Sean Hannity has promoted non-lethal weapons that will “incapacitate violent or threatening subjects” without killing them.

Hannity says non-lethal weapons in the hands of the police are a way to balance the need for robust and proactive policing while simultaneously averting the excessive use of police force and wrongful deaths.

Does Hannity have a point, and should not the use of non-lethal weapons rank high on the police reform agenda?

‘Systemic Racism’

9. Is our problem “systemic racism” or human nature and human frailty?

If the latter, is it possible to legislate or change human nature and human frailty? Or will we still inevitably have incidents of police brutality and excessive police use of force?

10. If our problem is “systemic racism,” then why did the police kill more unarmed white suspects in 2019 (nineteen) than unarmed black suspects (nine)?

Why did unarmed black victims of police shootings represent just 0.1 percent of all African-Americans killed in 2019?

11. If our problem is “systemic racism,” then why is a police officer “18.5 times more likely to be killed by a black male than an unarmed black male is to be killed by a police officer”?

12. Does “systemic racism” explain why the vast majority of African Americans are killed by other African Americans, and why, overwhelmingly, the victims of black crime are innocent African Americans?

13. An increasing number of police officers are black, Hispanic, Asian and other minorities, as are big-city police chiefs. Many departments—including the New York City and Los Angeles police departments—are majority minority.

Are these police officers and departments, too, plagued by “systemic racism”?

14. If, indeed, the police are statistically more inclined to police or confront African Americans, and sometimes on specious grounds, is this necessarily because of racism? Or might disparities in criminal conduct among different racial and ethnic groups have something to do with it?

15. Is there any other country than the United States of America where blacks have achieved more and enjoyed greater opportunity and more equitable treatment?

16. In the past 20 years, America has elected and reelected a black man as President of the United States, had two black secretaries of state, two black national security advisers, and at least a dozen black, Hispanic, Asian, and Indian governors, lieutenant governors, and senators.

Does this not refute the notion that ours is a country imbued with “systemic racism”?

‘Black Lives Matter’

17. If the protesters really believe that “black lives matter,” then why do they show little or no concern and passion for the lives of black teenagers and children murdered by black criminals in the inner city?

18. Why are there no “take-a-knee” protests and high-profile, high-vis funerals for black police officers killed by violent thugs?

19. We hear much about the historical legacy of racism and how it haunts law enforcement, and American society more generally, even today. Okay, but has anything changed for the better in the past 50 or 60 years, and can we also acknowledge this history and its relevance to the current debate?

20. The Voting Rights Act of 1965 and the Civil Rights Act of 1964 are considered landmark legislative achievements on the road to racial equality.

Ditto the 24th Amendment to the Constitution (also ratified in 1964), which prohibits poll taxes or any other tax that infringes upon a citizen’s right to vote.

The Fair Housing Act of 1968, likewise, prohibits racial discrimination in the sale, rental and financing of housing. Did this and similar legislation, as well as the 24th Amendment, achieve anything substantive and long-lasting?

21. America across the board—in government, corporations, public and private agencies—has instituted affirmative action programs to assist disadvantaged blacks.

Federal, state, and local governments, likewise, have spent trillions of dollars over a period of decades to assist disadvantaged Americans, black and white.

Is this evidence of a country that doesn’t believe “black lives matter”?

22. Polls consistently show that Americans are far less racist today than they were 50 or 60 years ago. Do these polls reflect reality, or are people lying to pollsters about how they really feel?

‘Militarization of the Police’

23. Is there any evidence that the so-called militarization of the police has resulted in more killings and bad community relations?

What if better armed police actually have had the opposite effect? Will policymakers and pundits then call for increased “militarization of the police”?

24. When the police receive equipment from the U.S. military, is this equipment assigned to every police officer within a law enforcement agency, or just specialized units such as SWAT teams?

25. Within police departments, is there a role for SWAT teams and should these teams be heavily armed and equipped?

26. Does the so-called “militarization of the police,” especially during introductory induction training, contribute to any shared sense of camaraderie, pride, and esprit de corps among cops? And, if so, might this help promote professionalism and good conduct?

27. Counterinsurgency operations in Iraq and Afghanistan emphasized protecting the indigenous population and exerciseing real restraint in the use of force.

Are there useful lessons here for our police? And, if so, doesn’t greater “militarization of the police”—meaning greater DoD-police cooperation and training—make sense?

‘Defund the Police’

28. Former NYPD Police Commissioner Ray Kelly notes that about 95 percent of all police budgets are for personnel costs. So would not “defunding the police,” or reducing police budgets, mean fewer police and less of a police presence on the streets?

29. Given that blacks in the inner cities are the most victimized by violent crime, would not “defunding the police,” or reducing police budgets, hurt them the most?

30. Heather Mac Donald observes that “the most urgent requests [for a proactive police presence] come from the law-abiding residents of high-crime neighborhoods”; and that she’s seen these requests “time and again in the dozens of police-community meetings [that she has] attended.”

Moreover, she writes, “the percentage of black respondents in a 2015 Roper poll who wanted more police in their community was twice as high as the percentage of white respondents who wanted more police.”

Do these black citizens matter, and should their concerns be listened to and heeded?

31. Incidents involving the mentally ill, the psychologically maladjusted, domestic disputes, spousal abuse, juvenile delinquency, and drug addicts can be dangerous, with the threat of violence ever-present.

Given the clear possibility (and sometimes likelihood) of violence, then, does it really make sense to have unarmed social workers and not police officers deal with these type incidents? What happens if social workers who respond to these type incidents are killed as a result?

‘Qualified Immunity’

House Democrats have unveiled a bill that would abolish “qualified immunity” for police officers—on the grounds that this “undermines police accountability and encourages bad behavior.”

But qualified immunity is rarely invoked and revoking it is a recipe for police inaction, according to Ray Kelly, former head of the New York City Police Department.

32. Who’s right: House Democrats or Ray Kelly?

33. What is the greater risk or danger: that police will withdraw from the streets and cities because they fear lawsuits, or that police will respond too aggressively and with excessive force because they need not fear a lawsuit?

34. What does the data tell us?

Honest, Good-Faith Debate

33. Is there any evidence that the so-called reforms being pushed will actually save black lives? What if the so-called reforms will do the opposite?

34. Can we discuss these issues fairly, honestly and dispassionately? Or must we, instead, dispense with fairness, honesty and dispassion because “this time’s different”?

Excuse me? “Am I done?” you ask? Yes, well, I understand that I have exceeded my time and perhaps overstayed my welcome. I have many other questions, and perhaps I can ask those at another time.

But with all due respect, it seems to me that before we legislatively chisel the protesters’ preferred answers into the legal equivalent of Mount Rushmore, we ought to ask some important and searching questions.

I offer these up only as a starting point. We have, dare I say, a lot more to think about.

Feature photo credit: Refinery29.com.