On 6
November 1860, the six-year-old Republican Party elected its first
president. During the tense crisis months that followed – the “secession
winter” of 1860–61 – practically all observers believed that Lincoln
and the Republicans would begin attacking slavery as soon as they took
power.
Democrats in the North blamed the Republican Party for the entire
sectional crisis. They accused Republicans of plotting to circumvent the
Constitutional prohibition against direct federal attacks on slavery.
Republicans would instead allegedly try to squeeze slavery to death indirectly,
by abolishing it in the territories and in Washington DC, suppressing
it in the high seas, and refusing federal enforcement of the Slave Laws.
The first to succumb to the Republican program of “ultimate
extinction,” Democrats charged, would be the border states where slavery
was most vulnerable. For Northern Democrats, this is what caused the
crisis; the Republicans were to blame for trying to get around the
Constitution.
Southern secessionists said almost exactly the same
thing. The Republicans supposedly intended to bypass the Constitution’s
protections for slavery by surrounding the South with free states, free
territories, and free waters. What Republicans called a “cordon of
freedom,” secessionists denounced as an inflammatory circle of fire.
The
Southern cooperationists – those who opposed immediate
secession – agreed with the secessionists’ and Northern Democrats’
analysis of Republican intentions. But they argued that the only way the
Republicans would actually have the power to act on those intentions
was if the Southern states seceded. If the slave states remained within
the Union, the Republicans would not have the majorities in Congress to
adopt their antislavery policies. And if the South did secede,
all bets would be off. The rebellious states would forfeit all the
constitutional protections of slavery. The South would get something
much worse than a cordon of freedom. It would get direct military
intervention, leading to the immediate and uncompensated emancipation of
the slaves.
The slaves themselves seem to have understood this.
They took an unusual interest in the 1860 election and had high hopes
for what Lincoln’s victory would mean. They assumed that Lincoln’s
inauguration would lead to war, that war would bring on a Union invasion
of the South, and that the invading Union army would free the slaves.
Credit Photograph by Haraz N. Ghanbari/AP
The Affordable Care Act is heading for another near-death
experience in the Supreme Court. In July, a divided panel of the U.S.
Court of Appeals for the D.C. Circuit issued a ruling
in Halbig v. Burwell that would greatly limit the number of people who
are eligible for subsidized health insurance. The problem has to do with
how people are connected with insurance providers, how they learn about
subsidies, and how they sign up for plans. As Congress originally
conceived it, the A.C.A. called for each state to set up its own
exchange with a Web site, which most of the blue states and a few of the
red ones did. But two dozen of them did not, so the Obama
Administration established a federal counterpart, centered on the Web
site healthcare.gov. According to the D.C. Circuit majority, one line in
the text of the A.C.A. makes the federal exchange invalid. The law says
that subsidies are to be available through exchanges that are
“established by a State,” without an explicit authorization of federal
exchanges. Thus, according to the judges in the majority, five million
or so people who have used the federal exchange to buy health insurance
must now lose it.
The
case is the latest chapter of the legal assault on Obamacare, but it is
also the most prominent instance of a larger fight over an ascendant
legal theory known as textualism. This approach, which was pioneered and
advocated by, most prominently, Justice Antonin Scalia, holds that
courts should interpret laws based solely on their own terms, and not on
the basis of the intent of the legislators who create the statute. As
Scalia has written, “We are governed by laws, not by the intentions of
legislators.” The words of the statute should always prevail, Scalia
believes, over “unenacted legislative intent.”
This all sounds
reasonable enough in the abstract. But what happens when the text of the
law is ambiguous, or if one part of the text conflicts with another?
The limits of textualism are explored in a new book by Robert A.
Katzmann, the chief judge on the Second Circuit, who was appointed by
President Bill Clinton in 1999. In “Judging Statutes,”
which will be released next week, Katzmann makes a powerful case that
judges should pay attention to legislative history—the words of members
of Congress in debates, the committee reports explaining laws, and all
of the source material that reflects how Congress really works.
Moreover, Katzmann makes the apt point that textualism is especially
inappropriate for judges who, like Scalia, profess to believe in
judicial restraint—in the idea, that is, that judges should defer to the
elected branches of government. Katzmann writes that “excluding
legislative history is just as likely to expand a judge’s discretion as
reduce it…. When a statute is ambiguous, barring legislative history
leaves a judge only with words that could be interpreted in a variety of
ways without contextual guidance as to what legislators may have
thought. Lacking such guidance increases the probability that a judge
will construe a law in a manner that the legislators did not intend.”
Katzmann’s
warning underlines the problem with the D.C. Circuit’s decision. (He
does not discuss the Obamacare case specifically.) When the Affordable
Care Act was being debated, every member of Congress–supporters of the
A.C.A. as well as opponents–understood that the federal government would
have the right to establish exchanges in states that chose not to
create them. As Judge Harry Edwards observed in his dissenting opinion
in the A.C.A. case, “The Act empowers HHS to establish exchanges on
behalf of the States, because parallel provisions indicate that Congress
thought that federal subsidies would be provided on HHS-created
exchanges, and, more importantly, because Congress established a careful
legislative scheme by which individual subsidies were essential to the
basic viability of individual insurance markets.”
A unanimous
panel of Fourth Circuit judges made similar observations in upholding
the federal exchanges. The conflict between the D.C. Circuit and the
Fourth Circuit makes Supreme Court review of the issue more likely. (The
Obama Administration has asked the full D.C. Circuit to hear the case,
so a Supreme Court test of the issue may be several months away.)
Scalia
and other textualists often assert that their approach drains their
judgments of political content: they simply read the statutes, consult a
dictionary, and render their verdicts. As the Halbig case demonstrates,
textualism is as politically fraught as any other approach to judging.
The Halbig case is not an attempt to police unclear drafting but rather
the latest effort to destroy a law that is despised by many
conservatives. The five appellate judges who voted to uphold the law
were originally nominated by Democratic Presidents; the two who voted
against it were chosen by Republicans. This reflects the real division
over the Affordable Care Act–a political, rather than judicial,
conflict. Textualism is not a dispassionate guide to a result; it’s
merely a vehicle to a preferred outcome—the destruction of Obamacare.
Atlanta surrendered to Sherman and the Yankee invaders 150 years ago
today. On September 2, 1864, the Confederacy was effectively doomed.
The Union was saved. More bloodshed remained in the coming months, but
the verdict was in. Ironically, Atlanta would become the symbol of the
forthcoming "New South." But was The South really ever new?
Democrats have two months to make sure this election doesn’t turn out
like 2010 did. It’s not about the president right now, and we shouldn’t
wait until 2016 for a new magical president. The kind of thoroughgoing
change we need won’t happen in eight years, or even 80. It’s an eternal
battle, the constant effort to expand the realm of human freedom to
everyone, against the constant crusade by the wealthy to ensure that the
trappings of human dignity – education, leisure, family life, childhood
itself – are reserved for those who can afford to pay for them. The
Kochs and their allies are trying to repeal the 20th century.
Progressives can’t just suit up for that battle every four years.
College Must Be More Than Just a Classy Trade School
Posted:
Updated:
There
is a tradition in this country stretching back to Thomas Jefferson of
lofty ideals for our colleges and universities. Liberal learning is said
to prepare one for autonomy and for citizenship. As Ralph Waldo Emerson
emphasized, it also led one away from the crowd; it helped one escape
mere imitation and opened access to authenticity. Finally, education
offered the opportunity to discover work that would be meaningful -- to
find one's "passion."
But, as I describe in Beyond The University: Why Liberal Education Matters,
there is another tradition stretching back just as far questioning the
"real world" relevance of these lofty ideals. Is it right to speak of
"finding meaningful work" when available work might necessarily involve
drudgery and worse? Is it right to emphasize citizenship and finding
one's passion to students who first and foremost are desperate to find a
job? Such questions, so much on our minds today, were especially
urgent for freed African slaves and their descendants at the beginning
of the 20th century.
In 1903, Booker T. Washington voiced the following complaint about education for African-Americans:
There
were young men educated in foreign tongues, but few in carpentry or in
mechanical or architectural drawing. Many were trained in Latin, but few
as engineers and blacksmiths. Too many were taken from the farm and
educated, but educated in everything but farming.
Washington
was a passionate advocate for an intensely practical education for
ex-slaves and their descendants. He was born a slave on a small farm in
Virginia and after the Civil War found work in the mines of West
Virginia. After his education at the Hampton Institute, Washington was
convinced that only by achieving economic success would blacks ever be
recognized by white Americans as full members of society. Education
should make people self-reliant, in Emerson's ideal sense, but for
Washington self-reliance was first and foremost the ability to earn a
decent living.
Washington's fame was as a teacher, institution
builder (especially at the Tuskegee Institute), fundraiser, and
spokesperson for the view that American blacks needed an intensely
practical, vocational education. He appealed to ex-slaves and their
descendants who were looking for a path out of poverty, and he appealed
to whites who appreciated his decision not to demand much in the way of
political or cultural change. Washington was an "accomodationist,"
willing to work within the structures for legal subordination of blacks
in the South as long as he was able to promote black economic
advancement. His message resonated with wealthy industrialists,
high-toned educators, and even presidents. He was the most famous black
man in America at the end of the 19th century.
Born shortly after
the Civil War, W.E.B. Du Bois came into his own just as Washington was
reaching the height of his fame. Du Bois was a prodigious intellectual
with a slew of degrees--bachelors diplomas from Fisk and Harvard,
eventually a Ph.D. also from Harvard (he was the first black person to
receive one there) with continued graduate work in Berlin. He was a
classics professor and a historian who wrote sociology (highly praised
by Max Weber), poetry, plays, and fiction--to name just some of the
genres in which he worked.
Washington was impressed by the
American desire for material success and wanted to build progress for
African Americans based on their ability to be successful in the
economy. Du Bois, on the other hand, emphasized political and civic
equality, along with the Jeffersonian notion of "education of youth
according to ability." Education was at the core of the differences
between the two. "The pushing of mere abstract knowledge into the head
means little," Washington had written. "We want more than the mere
performance of mental gymnastics. Our knowledge must be harnessed to the
things of real life." Du Bois agreed, but he wanted to broaden what
might count as "the things of real life" so that the pursuit of
happiness wouldn't be reduced to the pursuit of dollars:
The
function of the university is not simply to teach bread-winning, or to
furnish teachers for the public schools, or to be a center of polite
society; it is, above all, to be the organ of that fine adjustment
between real life and the growing knowledge of life, an adjustment which
forms the secret of civilization.
Du
Bois was acutely aware that the "fine adjustment" between life and
knowledge was especially problematic in a society of oppressive racial
inequality, a society that had denied many blacks the most rudimentary
education in the years after emancipation. He was committed to the ideal
that education was a path to freedom, but he also acknowledged the fact
that different people need different kinds of educational opportunity:
How
foolish to ask what is the best education for one or seven or sixty
million souls! Shall we teach them trades, or train them in liberal
arts? Neither and both: teach the workers to work and the thinkers to
think; make carpenters of carpenters, and philosophers of philosophers,
and fops of fools. Nor can we pause here. We are training not isolated
men but a living group of men--nay, a group within a group. And the
final product of our training must be neither a psychologist nor a
brickmason, but a man.
Educational
institutions should aim to stimulate hunger for knowledge -- not just
contain it or channel it into a narrow path destined for a job market
that will quickly change. Education should not teach the person to
conform to a function, a repetition of slavery, but should provide
people with a wider horizon of choices.
Du Bois repeatedly
defended liberal education against those who saw it as impractical. In
an address at the Hampton Institute in the beginning of the century, he
lamented that "there is an insistence on the practical in a manner and
tone that would make Socrates an idiot and Jesus Christ a crank." At one
of the centers of industrial learning for blacks, Du Bois argued that
its doctrine of education was fundamentally false because it was so
seriously limited. What mattered in education was not so much the
curriculum on campus but an understanding that the aim of education went
far beyond the university. And here is where Du Bois issued his
challenge:
The aim of the higher training of the
college is the development of power, the training of a self whose
balanced assertion will mean as much as possible for the great ends of
civilization. The aim of technical training on the other hand is to
enable the student to master the present methods of earning a living in
some particular way . . . We must give our youth a training designed
above all to make them men of power, of thought, of trained and
cultivated taste; men who know whither civilization is tending and what
it means.
The
differences between Washington and Du Bois, and the tensions between
the lofty and practical ideals for higher education, are instructive for
us today. Sure, we must pay attention to what our graduates will do
with their education, and we must give them the skills to translate what
they learn in classrooms to their lives after graduation. But we
shouldn't reduce our understanding of "their lives after graduation" to
their very first job -- which should be the worst job they'll ever have.
We must recommit ourselves instead to ensuring that a broad, liberal
education is also pragmatic -- in Washington's words, "harnessed to the
things in real life," to productive skills valued beyond the university.
By doing so, we will also achieve what Du Bois championed: practical
idealism based in lifelong learning.
WASHINGTON -- Most people know Labor Day as an extra day off
of work. Fewer know the holiday comes from a time when the government
was offing workers.
It all started with a bad recession in the
early 1890s that reduced demand for railway cars, prompting Chicago
railway magnate George Pullman to lay off workers and reduce wages. Many
of his workers went on strike. The sympathetic American Railway Union
refused to handle Pullman cars, hampering commerce in many parts of the
country.
"The boycott tapped the deep and pervasive alienation of labor in general," historian David Ray Papke wrote in his 1999 book The Pullman Case: The Clash of Labor and Capital in Industrial America.
"Workers were mad about their situation," Papke wrote. "They were
angry about their limited opportunities and about what they took to be
the mean and arbitrary treatment they received from the distant owners
of the industries in which they worked."
Pullman workers started
their strike in May 1894. The following month, Congress passed
legislation making the first Monday of September a day to recognize
workers. (Such a holiday had already been a demand of the labor
movement, though commentators
have described the Labor Day legislation as an attempt to "appease"
angry workers.) In July, President Grover Cleveland sent federal troops
to Chicago to crush the strike.
Illinois Gov. John Altgeld (D)
resented the president's decision, as there had not yet been any
large-scale rioting. "I protest against this uncalled for reflection
upon our people, and again ask the immediate withdrawal of these
troops," Altgeld wrote to the president.
Within a day of the
troops' arrival, mobs started tipping railroad cars and setting them on
fire. Troops cracked down with bayonets and bullets; the rioting and
property destruction worsened. Dozens of people ultimately died in
Chicago and elsewhere. The government restored order by the fall, and
American Railway Union leader Eugene Debs was eventually convicted of
defying a court order and sent to prison.
The U.S. Department of Labor's page on the history of Labor Day
notes the holiday "is a creation of the labor movement and is dedicated
to the social and economic achievements of American workers." It
doesn't mention the Pullman strike or labor strife in general.
Throughout American history, workers had to fight to get better pay and shorter hours -- evenings and weekends weren't just handed over by lawmakers and benevolent managers.
"I
think most people consider Labor Day an end-of-summer three-day
weekend," Papke, a law professor at Marquette University, said in an
interview. "Very few Americans stop to reflect on the working man, on
labor, on the union movement or any of those things."