U.S. First Congress: Establishment of Racial Categories for the U.S. Census and Citizenship Naturalization, 1790

Important tasks for the First Congress of the U.S. were establishing the requirements for the first census of the country and for becoming a citizen by naturalization. [1]

Anyone who has studied any American history knows that slavery existed at the adoption of the U.S. Constitution in 1788 and that the Constitution’s original Article I, Section 2 apportioned representatives in the House of Representatives “according to their respective Numbers, which shall be determined by adding to the number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons [i.e., slaves].” (Emphasis added.)[2]

Therefore, it should not be surprising that the very First Congress of the U.S. enacted a statute for the first U.S. census and a statute establishing requirements for becoming a naturalized U.S. citizen, both of which distinguished between “white” individuals and “slaves.” Nevertheless, it was still startling for me to discover these two statutes and the subsequent history of these aspects of U.S. law.

The First U.S. Census

On March 1, 1790, the First Congress enacted a statute that established the following categories for the first enumeration or census: “Free white males of sixteen years and upwards, including heads of families; Free white males under sixteen years; Free white females, including heads of families; All other free persons; and Slaves.” (Emphasis added.) It also called for identifying an individual’s occupation.[3]

These provisions were not controversial. There, however, was controversy, according to Fegus Bordewich, over whether the first census “was too ambitious, too detailed, and subdivided the population into [occupational] ‘classes too minute’” and was too invasive of privacy. (P. 196)

The First Naturalization Statute

On January 8, 1790, President George Washington delivered the first State of the Union address, in which he said, “Various considerations also render it expedient that the terms on which foreigners may be admitted to the rights of citizens should be speedily ascertained by a uniform rule of naturalization.”(P. 180) [4]

Thereafter the members of the First Congress debated whether an oath of allegiance should suffice, whether there should be a residence requirement, whether there should be a national or a state-by-state requirement and whether foreign seamen could easily become citizens. The answer to these fears apparently was provided by Virginia’s Representative John Page, a large slave owner: “’It is nothing to us whether Jews, or Roman Catholics, settle amongst us; whether subjects of kings or citizens of free states wish to reside in the [U.S.], they will find it their interest to be good citizens; and neither their religious or political opinions can injure us, if we have good laws, well executed.’” (Pp. 196-97)

On March 26, 1790, the First Congress enacted a statute that limited naturalization to an “alien, being a “free white person.”(Emphasis added.) Although the statute did not define that term, it clearly excluded Native Americans, indentured servants, slaves, free blacks and Asians from this method of obtaining U.S. citizenship. Other requirements were being a “resident” for one year of a state, possessing “good character,” and having taken “an oath or affirmation . . . to support the constitution of the [U.S.].” [5]

As discussed in another post, the “white” racial category (with subsequent additions of other racial categories) for naturalization remained in U.S. statutes until 1952 when Congress enacted the McCarran-Walter Act, 60 Stat. 163, 239 (1952), which states in section 311, “The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.” [6]

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[1] See generally The U.S. First Congress: Overview, 1789-1791, dwkcommentaries.com (Feb. 15, 2017);Fergus Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster, New York, 2016)[the above text of this post cites to to specific pages of this book].

[2]  The above provision of the original Constitution was deleted by Section 2 of the Fourteenth Amendment thereto, which was adopted after the Civil War in 1868 and which states: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

[3] An Act providing for the enumeration of the Inhabitants of the United States, 1 Stat. 101 (1790),U.S. ConstitutionU https://www.loc.gov/law/help/statutes-at-large/1st-congress/c1.pdf The “white” category has been used in every decennial census through 2010 while “slave” was used through 1840.

[4] President Washington, State of the Union Address (Jan. 8, 1790), http:www.presidency.ucsb.edu/was/?pid=29431.

[5] An Act to establish an uniform Rule of Naturalization,” 1 Stat. 103 (1790), http://library.uwb.edu/Static/USimmigration/1%20stat%20103.pdf.

[6] History of Recism in U.S. Laws Regarding United States Citizenship, dwkcommentaries.com (June 24, 2016).

U.S. First Congress: Creation of Federal Judiciary, 1789

As previously discussed, the First Congress of the United States of America began on March 4, 1789, and ended on March 4, 1791. We now look at its creation of the federal court system in the Judiciary Act of 1789, which was adopted on September 24, 1789.[1]

The Constitution

The backdrop for this legislation was Article III of the Constitution of the U.S.A., which provided the following:

  • Section 1 “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
  • Section 2 “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
  • “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
  • “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Judiciary Act of 1789

The previously mentioned Judiciary Act of 1789 had the following key provisions:

  • Section 1. The “supreme court of the United States shall consist of a chief justice and five associate justices . . . .” [The Supreme Court’s cognizance or jurisdiction was established in Section 13.][2]
  • Section 2. The U.S. “shall be, and they hereby are divided into thirteen districts [as defined in that section].[3]
  • Section 3. There shall be “a court called a District Court, in each of the aforesaid districts, to consist of one judge, who shall reside in the district for which he is appointed, and shall be called a District Judge. . . .” [The cognizance or jurisdiction of each of the District Courts was specified in Sections 9 and 10.][4]
  • Section 4. These thirteen districts, except those of Maine and Kentucky, “shall be divided into three circuits, and be called the eastern, the middle and the southern circuit. . . . and that there shall be held annually in each district of said circuits, two courts, which shall be called Circuit Courts, and shall consist of any two justices of the Supreme Court and the district judge of such districts . . . .’ [The cognizance or jurisdiction of the Circuit Courts was specified in Section 11, and certain of their procedures were contained in Section 5.] [5]
  • Section 12 [Procedure for removal of certain cases from state court to federal court.]
  • Sections 6, 8, 14-26, 29-35. [Established rules of procedure for the federal courts.]
  • Section 7 [Supreme Court and District Courts have power to appoint clerks with specification of their duties.]
  • Sections 27-28. [District courts have power to appoint marshals with specification of their duties.]

According to Fergus Bordewich, the author of a leading book about the First Congress, the bill’s primary author was Senator Oliver Ellsworth, a staunch Federalist from Connecticut and an experienced litigator and state court judge. Ellsworth was especially concerned about maritime issues because virtually all of the federal government’s revenues would derive from import duties. Another maritime issue was regulating privately owned raiders by validating captured prizes and ensuring that they did not commit outright piracy. [6]

There was “vigorous debate” about the bill. Some believed that having only six Supreme Court justices was insufficient to combat the state courts; that it would be wrong to allow state courts to have jurisdiction over some federal cases; that there was insufficient federal revenue to support the federal courts; that this judiciary was intended to enrich lawyers; that the federal judges would have too much “inquisitorial power;” that the federal courts should not have the power to invalidate state laws that were believed to conflict with the Constitution or federal laws or treaties. James Madison in the House of Representatives thought the bill was too complicated and too expensive. Some even thought that having two overlapping judicial systems (state and federal) was totally unnecessary.

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[1] U.S. First Congress, 1789-1791: Overview, dwkcommentaries.com (Feb. 15, 2017); Judiciary Act of 1789, http://avalon.law.yale.edu/18th_century/judiciary_act.asp.

[2] Over the years Congress has passed various acts to change the number of Supreme Court justices from six to a low of five and a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred. (U.S. Sup. Ct., Frequently Asked Questions (FAQ). https://www.supremecourt.gov/faq.aspx#faqgi

[3] There now are 94 U.S. district courts as some states like New York have more than one such district and as some non-states (e.g., Puerto Rico) have such courts. (U.S. Courts, Court Role and Structure.) http://www.uscourts.gov/about-federal-courts/court-role-and-structure

[4] Most, if not all, of today’s U.S. district courts have more than one judge. Thus, as of May 2012 there were 2,758 such judges.

[5] The U.S. circuit courts have been replaced by 13 U.S. courts of appeal, and as of May 2012 there were 714 judges on these courts. (U.S. Courts, Court Role and Structure.) http://www.uscourts.gov/about-federal-courts/court-role-and-structure

[6] Bordewich, The First Congress at 105-12, 141-43, 159-60 (Simon & Schuster, New York, 2016). http://www.simonandschuster.com/books/The-First-Congress/Fergus-M-Bordewich/9781451691931

Trump and Rubio Share “Similar Views” on Cuba

At President Trump’s rambling press conference on February 16 he said that over dinner the previous night he and Senator Marco Rubio (Rep., FL) “had a very good discussion about Cuba because we have very similar views on Cuba.” Trump added that “Cuba has been very good to me, in the elections. . ., the Cuban people, Americans.” (Torres, Trump: Rubio and I have ‘very similar views on Cuba,’ Miami Herald Feb. 16, 2017).)

No details were provided on which views were similar, but Rubio’s opposition to former President Obama’s normalisation of U.S. relations with Cuba is well known, and during last year’s presidential campaign Trump voiced similar thoughts. (See posts listed in ¨ U.S. and Cuba in the Trump Administration, 2017¨section of List of Posts to dwkcommentaries.com–Topical: CUBA.)

As  an advocate of such normalization, this is disturbing, but unfortunately not surprising, news.

 

U.S. First Congress: Overview, 1789-1791

The First Congress of the United States of America and thus the official commencement of the U.S. federal government under the U.S. Constitution began on March 4, 1789, and ended on March 4, 1791.[1]

This Congress’ First Session (March 4, 1789—September 29, 1989) and Second Session (January 4, 1790—August 12, 1790) took place at Federal Hall in New York City. The Third Session (December 6, 1790—March 3, 1791), at Congress Hall in Philadelphia. Below are drawings of those buildings:

Federal Hall
Federal Hall
Congress Hall
Congress Hall

 

 

 

 

 

 

At the start of the First Congress there were 22 senators and 59 representatives. After ratifications of the U.S. Constitution by North Carolina on November 21, 1789, and by Rhode Island on May 29, 1790, there were 26 senators and 64 representatives.

There were no standing committees of this Congress. Instead the Senate and House of Representatives acted as committees of the whole to consider individual bills. Thus, there are no committee reports regarding bills like those that exist today. Moreover, there are no transcripts of debates such as exist today in the Congressional Record. The record of the 94 separate pieces of legislation produced by the First Congress, however, is available in 204 pages of 1 U.S. Statutes.

In addition, the 1st Federal Congress Project at The George Washington University in Washington, D.C. serves as a research/education center for the First Congress and has collected, researched, edited and published the Documentary History of the First Federal Congress, l789-l791 (DHFFC). Fergus Bordewich,the author of The First Congress, acknowledged his indebtedness to this Project, which has “brought together virtually every known piece of writing composed by or about the members of the First Congress . . . as well as the best official records of their debates.” [2]

As Mr. Bordewich puts it in The First Congress, “Beginning less than two years after the conclusion of the Constitutional Convention and before all thirteen states had ratified that document, the First Congress was charged with creating a new government almost from scratch. No one, neither in Congress nor outside it, knew if it would or could succeed. How it did so is an epic story of political combat, vivid personalities, clashing idealisms, and extraordinary determination. It breathed life into the Constitution, established precedents that still guide the nation’s government, and set the stage for political battles that continue to be fought our across the political landscape of the twenty-first century.” (P. 1)

Subsequent posts will examine the First Congress’ adoption of the first congressional proposed amendments to the U.S. Constitution; the statute creating the federal courts (the Judiciary Act of 1789); the statutes creating the requirements for the first census (An Act providing for the enumeration of the Inhabitants of the United States, 1 Stat. 101 (1790)) and an individual’s becoming a U.S. citizen (the Naturalization Act of 1790); and debates regarding slavery.

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[1] Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster; New York, 2016); 1st United States Congress, Wikipedia; Federal Hall, Wikipedia; Toogood, U.S. Congress (1790-1800), Encyclopedia of Greater Philadelphia; 1 U.S. Stat. 23-225 (1845)  (the statutes of the First Congress).

[2] I have not done any original research regarding the First Congress other than examining the constitutional amendments it proposed and some of the statutes it enacted. Instead for the purpose of this and subsequent posts I have relied on Mr. Bordewich’s book, but I confess that it would be fascinating to examine the records at the 1st Federal Congress Project.

 

Trump’s Unfounded Fear of Refugees

We all know full too well about President Trump’s repeated assertions of fear of refugees killing and harming Americans as purported justifications for his proposed restrictions on admission of refugees into the U.S.

There are so many reasons to reject and oppose these assertions and restrictions. Here are just two.

First, as Nicolas Kristof, New York Times columnist, points out, the facts do not support the claimed fear. In the last 40 years, “terrorists born in the seven nations in Trump’s travel ban killed zero people in America” while Americans with guns killed 1.34 million. This includes 230,123 murders by Americans who were Muslims.  The latter set of murders is exceeded by murders with guns by American husbands.  (Kristof, Husbands Are Deadlier Than Terrorists, N.Y. Times (Feb. 12, 2017).)

Second, all of the scare tactics of Trump and his allies fail to mention that refugees are those individuals who have proved, under international and U.S. law, that they have a “well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group.” Assembling the evidence and legal arguments for a claim to ‘refugee’ status is not easy by itself, and such a claim is subject to cross examination and vetting by representative of the United Nations High Commissioner for Refugees or the U.S. government.

It is not easy to persuade these officials as I can attest as a pro bono attorney for aliens who have sought asylum in the U.S. by proving that they were “refugees” under the previously mentioned laws. (Refugee and Asylum Law: Modern Era, dwkcommentaries.com (July 9, 2011); Multilateral Treaties Ratified by the U.S., dwkcommentaries.com (Feb. 9, 2013); Becoming a Pro Bono Asylum Lawyer, dwkcommentaries.com (May 24, 2011).)

Indeed, a detailed review of the current, more elaborate, multi-year oUNHCR and U.S. procedures for reviewing and vetting applications for “refugee” status, especially from Syria and Iraq, has been provided by a former U.S. immigration officer. (Hall, Refugees are already vigorously vetted. I know because I vetted them, Wash. Post (Feb. 1, 2017).)

Given these legal requirements and the extensive vetting of claims for refugee status that exists today, it certainly always would be legitimate to consider in a calm and rational manner whether improvements could be made to U.S. procedures for evaluating such claims. But to scream or tweet an unspecified need for “extreme vetting” is hysterical poppycock.

Jesus, The Refugee

“When last we saw Jesus he had just delivered a withering homiletic critique of his neighbors in the synagogue in Nazareth. He had refuted their assumption that God’s intentions for the human family were reserved solely for them and their nation.”[1]

“The townspeople nearly throw Jesus off the cliffs outside Nazareth for saying that, but somehow he escapes.”

Jesus thereby “became a former person, a person without a home, rejected by his own people and expelled. It had happened to him before, when the Holy Family had fled to Egypt with the infant Jesus to escape the violence of King Herod. Now, when Nazareth runs him out of town, Jesus becomes a refugee again. He never returns to his hometown.”[2]

Then Jesus and the disciples walked the nine miles or so northeast of Nazareth to the village of Cana.

“When Jesus and the disciples arrived in Cana they were invited to a wedding feast [where he performed his first miracle by turning] six jugs of water  into wine.” This is the account of that event from John 2:1-11 (NRSV):

  • ‘On the third day there was a wedding in Cana of Galilee, and the mother of Jesus was there. Jesus and his disciples had also been invited to the wedding. When the wine gave out, the mother of Jesus said to him, ‘ They have no wine.’ And Jesus said to her, ‘ Woman, what concern is that to you and to me? My hour has yet to come.’ His mother said to the servants, ‘Do whatever he tells you.’ Now standing there were six stone water jars for the Jewish rites of purification and holding twenty or thirty gallons. Jesus said to them, ‘Fill the jars with water.’ And they filled them to the brim. He said to them, ‘Now draw some out, and take it to the chief steward.’ So they took it. when the steward tasted the water that had become wine, and did not know where it came from (though the servants who had drawn the water knew), the steward called the bridegroom and said to him,’Everyone serves the fine wine first, and then the inferior wine after the guests have been drunk. But you have kept the good wine until now.’ Jesus did this, the first of his signs, in Cana of Galilee, and revealed his glory, and his disciples believed in him.’

[This wedding scene has great significance because marriage] “is a recurring metaphor in scripture for the relationship between God and the people of God. The prophets used wedding language to describe God’s desires for the human family, especially for those who suffer. Isaiah’s words, directed to a long-ago people in exile, may have been read that day:”

  • ‘You shall no more be termed Forsaken, and your land shall no more be termed Desolate; but you shall be called My Delight Is in Her, and your land Married; for the LORD delights in you, and your land shall be married.’ (Isaiah 62:4)

“‘You shall no more be termed Forsaken, and your land shall no more be termed Desolate.’ The marriage scene in Cana offers a counterpoint to the violence Jesus experiences in Nazareth. It opposes his dehumanization. It reaffirms God’s love for one who has been subjected to hatred. ‘For the Lord delights in you.’ ‘Jesus did this,’ John says, ‘The first of his signs, in Cana of Galilee, and revealed his glory; and his disciples believed in him.’ (John 2:11)”

“The wine [provided by Jesus] signals something. The marriage feast with its abundant drink is a sign that God will not abandon the outcast children of God but will instead delight in them. God will contest those who seek to deny the humanity of others, in this case, Jesus, the former person from Nazareth. God uses the wedding feast to show that the degradation of humankind will be resisted, and that the resistance will be girded in joy.”

“Jesus changes the water into wine to signal God’s hospitality to those rejected by others and to reveal God’s delight in those deeemed to be former people.”

“At the wedding feast in Cana Jesus launches a movement. A movement of joyful resistance  against the baser impulses that run through each of us and through the principalities and powers of every time and place.”

“Yesterday a Jewish congregation in Illinois welcomed a Syrian family that had arrived in the U.S. on Friday, Holocaust Remembrance Day, the very day new rules excluding all refugees were issued. A day later the American Jews welcomed the Syrian Muslim family to their new town near Chicago with hugs and cheers and toys for the children. The members of the synagogue – and more than 100 were involved in supporting the family – then brought them to their new home, where they had prepared a feast, complete with a Syrian-style cake. ‘If this is the last group of refugees to get in,’ the [Illinois] rabbi said, ‘We will show them the best of America.'[3]

“It was the miracle of Cana all over again, and God’s intentions for the human family carried the day.”

“Today, in our time and in this land, the church still finds its calling in that same movement [of joyful resistance against the baser impulses].”

[We do so while recognizing that] “no religion or nation is innocent. . . . It’s what Europeans did to indigenous people and enslaved Africans. It’s happening now to Muslims and christians in Syria, in unprecedented numbers.”

“’Those of us who follow Jesus are no different from the refugees of our time. Once we were former people. Forgotten people. Displaced people. At the heart of our faith is the claim that God stands with those cast out who now dwell in the kingdom of memory, and the mandate that we stand with them, as well.”

[As 1 Peter tells us,] “’Once you were no people, but now you are God’s people,’ [and] goes on to say.

  • ‘Once you had not received mercy, but now you have received mercy. Beloved, I urge you as aliens and exiles to…conduct yourselves honorably…so that…they may see your honorable deeds and glorify God when God comes to judge.’ (I Peter 2:10-12)”

“Judgment is a word to be used sparingly and with great caution, but in the midst of one of the greatest refugee crises in history, we as a nation, and certainly those of us who follow the refugee named Jesus, will be judged by our response. Assuring the safety and security of our country is essential, but when we indiscriminately close our borders to mothers and fathers and children fleeing violence in their homeland and when we refuse entry to people solely on the basis of religion or national origin we are no different from and no better than those across history who have forced others to become former people.”

“’Give me your tired, your poor, Your huddled masses yearning to breathe free,’ Emma Lazarus said in her poem written in celebration of the Statue of Liberty, which she called the Mother of Exiles, ‘The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me.'”

“Remember the ship called the St. Louis carrying Jews, forced from our harbors to return to Nazi Germany? Or Japanese-Americans driven from their homes and put in camps? Or the Dakota people expelled from this state and their land? Have we learned nothing from our history?”

“We live in a nation founded by people fleeing persecution. As people of faith we cannot remain silent in the face of policies that run counter to the biblical call to ‘welcome the stranger in our midst’ and that ignore the American commitment to offer refuge.”

Reactions

I found this sermon very moving although I had these nagging concerns. Jesus’ mother Mary already was at the wedding and thus it is fair to assume the residents of Cana had heard something about Jesus’ preaching, but they probably would not have heard about Nazareth’s expulsion of Jesus. If so, then the residents did not welcome Jesus as a refugeee. I assume that Cana was a small village and that most of the residents were at the wedding celebration. Therefore, when Jesus and his 12 disciples show up, there is nowhere else for them to go. These 13 additional guests placed an unexpected burden on the wine and food for the guests, yet the 13 were invited and welcomed. I also assume that in that time and place, as is true today, wedding guests are expected to bring gifts for the bride and groom, and Jesus and the disciples had no gifts in hand. Recognizing this faux pas and the burden they were placing on the bride and groom, Jesus provided extra wine as a gift and as a thank you for being included.

Are these concerns misplaced? I solicit comments from those who have greater knowledge about the Cana story.

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[1] This blog post is an edited version of Rev. Timothy Hart-Andersen’s January 29 sermon at Minneapolis’ Westminster Presbyterian Church, including his reference to his prior sermon that was discussed in an earlier post.  (the 1/29/17 sermon, Westminstermpls.org/2017/02/02/why-chan; the 1/29/17 bulltin, wp-content/uploads/2017/01; the bog about the 1/22/17 sermon, dwkcommentaries.com/2017/01/30/Jesus-inaugural-address.

[2] The phrase “former people” comes from historian Douglas Smith, who used the term to refer to the Russian aristocracy banished and persecuted after the Russian Revolution of 1917. (Douglas Smith, Former People: The Final Days of the Russian Aristocracy (Farrar, Strauss & Giroux, 2013).) Smith, by the way, before college, was involved in youth activities at Westminster Church.

[3] Kantor, Warm Welcome for Syrians in a Country About to Ban Them, N.Y. Times (Jan. 28, 2017).

The Improper Use of Senate Rule XIX To Stop Senator Warren from Speaking

As has been widely reported, the U.S. Senate Majority Leader, Senator Mitch McConnell (Rep., KY), on February 7 asserted an objection to the remarks of Senator Elizabeth Warren (Dem., MA) and the objection was sustained by the presiding officer, Senator Steve Dawes (Rep., MT), and by the entire Senate, 49-43. As a result, Senator Warren was prevented from making any further remarks.

This occurred during the Senate’s consideration of whether to confirm the nomination of Jeff Sessions to be Attorney General when Senator Warren was reading a 1986 letter from Coretta Scott King, the widow of Rev. Martin Luther King, Jr., complaining about Session as a U.S. attorney for allegedly “using the awesome power of his office to chill the free exercise of the vote by black Americans.”

The asserted basis for the objection by McConnell was Senate Rule XIX, which states, “No Senator, in debate, shall “directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.”

This Rule rarely has been used since its adoption in 1902 after a fist-fight on the Senate floor between two senators over whether the Senate would approve a U.S. treaty to annex the Philippines. Its use by McConnell has been criticized widely as impolitic and sexual discrimination as the Rule has not been used to stop male senators from doing the same thing the next day and from previously making many derogatory remarks on the floor about other senators.

The Rule, closely and properly read, does not apply to this situation for at least two reasons.

First, the Rule refers to “conduct or motive unworthy or unbecoming a Senator,” and here Warren was referring to Sessions’ conduct as a U.S. attorney before he became a senator.

Second, and more importantly, the matter under consideration was whether the Senate should confirm Sessions to be the next Attorney General and, therefore, whether he had the skills, background and character to hold this important office. Hence, his entire life was relevant on at least the character issue, and the opinion of an important U.S. citizen (Mrs. King) on his conduct as a U.S. attorney around 1986 is directly relevant to the issue of confirmation. Indeed, so is the senatorial record of  any senator who is undergoing Senate review as a cabinet nominee like Senator Sessions.

As a result, Senator McConnell should apologize to Senator Warren and the entire U.S. Senate for this improper use of Rule XIX.

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U.S. Senate, Rule XIX; Berman, A Brief History of the Senate Rule That Silenced Elizabeth Warren, Atlantic Magazine (Feb. 8, 2017);; Flegenheimer, Republican Senators Vote to Formerly Silence Elizabeth Warren, N.Y. Times (Feb. 7, 2017); Lichtblau & Flegenheimer, Jeff Sessions Confirmed as Attorney General, Capping Legal Battle, N.Y. Times (Feb. 8, 2017).