Author: dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

“Come, Thou Fount of Every Blessing”

This beloved hymn was sung as an anthem by the choir at the July 28th worship service at Minneapolis’ Westminster Presbyterian Church.[1] Listening to it was enriching although joining in congregational singing of the hymn would have been even more meaningful.

At least for me, however, there is not enough time while listening to an anthem or singing a hymn to ponder the true meaning and significance of its words. I recently have discovered that gaining a better and deeper understanding of a hymn or anthem requires subsequent meditation on the words, researching the hymn’s history and writing an essay recording the results of that meditation and research. In short, such a practice has become a spiritual discipline.[2]

The Lyrics

Here are the lyrics of the three verses of “Come, Thou Fount of Every Blessing:”

1. Come, thou Fount of every blessing,

tune my heart to sing thy grace;

streams of mercy, never ceasing,

call for songs of loudest praise.

Teach me some melodious sonnet,

sung by flaming tongues above.

Praise the mount! I’m fixed upon it,

mount of thy redeeming love.

2. Here I raise mine Ebenezer;

hither by thy help I’m come;

and I hope, by thy good pleasure,

safely to arrive at home.

Jesus sought me when a stranger,

wandering from the fold of God;

he, to rescue me from danger,

interposed his precious blood.

3. O to grace how great a debtor

daily I’m constrained to be!

Let thy goodness, like a fetter,

bind my wandering heart to thee.

Prone to wander, Lord, I feel it,

prone to leave the God I love;

here’s my heart, O take and seal it,

seal it for thy courts above.

The hymn testifies to the amazing graces God provides to human beings. God bestows “streams of mercy, never ceasing.” By God’s “help I’m come” thus far in my life, and with God’s “good pleasure, [ I hope] safely to arrive at home.” “Jesus sought me when a stranger, wandering from the fold of God; he, to rescue me from danger.” [3]

Confession of sin also is prominent in the hymn. The human being has a “wandering heart” that is “prone to wander” and “prone to leave the God I love.” The human can be and has been a “stranger, wandering from the fold of God.”

Therefore, the human being needs constraints, binders and fetters to combat this impulse to wander. The human needs God to “tune my heart to sing thy grace.”

God responds to this need with “goodness.” The human in turn responds with “songs of loudest praise.” “Praise the . . . mount of thy redeeming love.” “Fount of every blessing.” The human then offers “my heart, O take and seal it, seal it for thy courts above.”

The hymn’s reference to raising “my Ebenezer” long baffled me. The answer is found in the following passages of First Samuel in the Hebrew Bible (the Old Testament), which is believed to have been written in the seventh century BCE:

Israel was engaged in battles with the Philistines. While Israel’s troops were encamped near the village of Ebenezer, the Philistines routed Israel and seized the Arc of the Covenant in accordance with the ancient custom of taking the statue of the god of the defeated enemy as booty. (1 Samuel 4-5.)

Seven months later the Philistines returned the Arc of the Covenant to Israeli people in the town of Beth-shemesh who subsequently delivered it to the people of the town of Kiriath-jearim. (1 Samuel 6-7:1.)

Twenty years passed, and Samuel, a prophet and judge, told the people of Israel. “If you are returning to the Lord with all your heart, then put away the foreign gods [and idols] . . . from among you. Direct your heart to the Lord, and serve Him only, and he will deliver you out of the hand of the Philistines.” (1 Samuel 7: 2-3.)

The people did as they were told, and Samuel said, “Gather all Israel at [the town of] Mizpah, and I will pray to the Lord” for forgiveness for your sins and for deliverance from the Philistines. The Israeli people then gathered at Mizpah for this religious ceremony. (1 Samuel 7: 4-6.)

When the Philistines learned of this assembly, their troops advanced to attack the Israeli people at Mizpah. The Lord, however, “threw [the Philistines] into confusion; and they were routed before Israel.” (1 Samuel 7: 7-11.)

To commemorate this event, “Samuel took a stone and set it up between Mizpah and [the village of] Jeshanah, and named [the stone] Ebenezer [stone of help and the site of the prior victory of the Philistines]; for he said, “Thus far the Lord has helped us.” (1 Samuel 7:12.) In other words, Samuel publicly dedicated this stone, according to another blogger, “as a monument to God’s help, God’s faithfulness, God’s eternal covenant. And as the people got on with their lives, the stone stood there, visible to all who passed that way, a reminder of judgment and repentance, mercy and restoration.”

Thus, “Here I raise my Ebenezer; hither by thy help I’m come” is a metaphorical way of saying that I recognize that God has helped me reach this point in my life and that it is important to create an outward expression of this recognition and gratitude.

The Lyricist

The lyrics were written around 1757 by Robert Robinson, an Englishman then age 22 and a recent convert to Evangelical Methodism. In 1759 after a brief period at a Congregational Chapel, he joined Stone-Yard Baptist Chapel in Cambridge, England. There he remained for most of the rest of his life, first as Lecturer and then, from 1762 to at least 1788, as Pastor.

Although Robinson had argued against Unitarianism for many years, in 1788 he apparently converted to that faith although never doubting the full divinity of Jesus Christ. In 1790 he visited Joseph Priestly, a noted Unitarian in Birmingham, England [4] and preached several sermons at his chapels. There Robinson died and was buried in that city’s Dissenters’ Burial Ground.

The Composer, Publisher and Arranger

In the U.S., the hymn is usually set to an American folk tune known as Nettleton, composed by Asahel Nettleton (1783 –1844), an American theologian and pastor from Connecticut who was highly influential during the Second Great Awakening.

In 1813 the hymn and music were included in the Repository of Sacred Music, Part Second that was published by John Wyeth, a Philadelphia printer. This book and its predecessor, the Repository of Sacred Music, were highly successful, selling over 150,000 copies. In the preface to his work, Wyeth claimed three qualifications as a compiler of sacred music: years of attention to the charms of church music; acquaintance with the taste of eminent teachers; and the possession of more than a thousand pages of music to use.

The musical arrangement used at Westminster on July 28th was by Howard Don Small (1933-2007), who had been the Choirmaster and Organist at Minneapolis’ St. Mark’s Episcopal Cathedral. When he retired from St. Mark’s in 1998, a choir member expressed appreciation for Small’s “qualities of professionalism, musicianship, and leadership;” gratitude . . . for the opportunity to grow, learn, and deepen my spirituality; sadness – that [Small] will be leaving, but also; happiness – that [Small] will be able to be relieved of the extreme pressure of your role to do things at a manageable and enjoyable pace.”

Conclusion

Merely recounting the involvement over 250 years of four men in the creation, publication and arrangement of this hymn (and anthem) and then the Westminster choir’s singing the hymn under the direction of Jere Lantz with the organ accompaniment by Westminster Minister of Music & the Arts/Organist, Melanie Ohnstad, brings to mind two Scriptural passages.

All of these individuals are members of the “cloud of witnesses” (Hebrews 12:1-2) who meld their different gifts into one body to produce something pleasing to God (Romans 12: 3-8). Including Samuel in this cloud of witnesses, as we should, expands the time period to over 2,700 years.

I must confess that the Howard Don Small arrangement that was sung by the choir made a significant, and, I think, unfortunate change in the lyrics. Instead of “Here I raise my Ebenezer; hither by thy help I’m come,” they sang “Here I find my greatest pleasure; In the help I hope I’m come.” (I am not too sure about the latter part of this substitution.) This change undoubtedly was prompted by the arranger’s knowing that many people today do not understand the reference to “raising my Ebenezer.”

This wording change, however, obliterates Robinson’s meaning and also prevents people from researching and discovering that true meaning. A professor at Gordon-Conwell Theological Seminary, Gary A. Parrett, has been crusading against such changes to this hymn. His article in Christianity Today expressed the following reasons for this opposition, which I endorse:

“Robinson [undoubtedly] felt he had found just the right expression to say what needed to be said. His phrasing, in this case, was succinct, biblical, pointed, poignant, and poetic.”
The “revisions are, at best, inconsistent attempts to be culturally relevant. How can the revisers leave in words like hither and fetter, as they typically do, while Ebenezer is heartlessly expunged?”
The revisions ignore the Biblical foundation for Robinson’s words, as pointed out above. As Parrett says, the “single word [Ebenezer] ushers the worshiper into both the biblical episode and the greater narrative of God’s redemptive dealings with his people. It points us, also, to Robinson’s dramatic conversion three years before he penned the hymn, inviting us to reflect upon our own stories and to remember God’s faithful dealings with us. By removing the word from the hymn, we likely remove it from believers’ vocabularies and from our treasury of spiritual resources.”
“What we have in such revisions is the worst sort of accommodation, even contribution, to biblical illiteracy. Our faith is filled with names and terms that were unfamiliar to us when we joined the family—atonement, propitiation, Sabbath, Passover, Melchizedek. What are we to do with such terms? We teach! How difficult would it be to simply explain the reference to Ebenezer?”

[1] The bulletin and a video and audio recording of this service are available online.

[2] Other posts have discussed other hymns and anthems that have been sung at Westminster: two Palestinian hymns; O Holy One and Nameless; Forth in Thy Name, O Lord, I Go; Lakota Wiyanki (Beautiful Women); Heleluyan; Morning Song; Many and Great, O God Are Thy Ways; Many and Great, O God Are Thy Things;You Know the Way; and Just As I Am.

[3] These words remind me of the third verse of another great hymn, Amazing Grace: “Through many dangers, toils and snares I have already come; ‘Tis Grace that brought me safe thus far and Grace will lead me home.”

[4] Priestly (1733 –1804) was an 18th-century English theologian, Dissenting clergyman, natural philosopher, chemist, educator, and political theorist. He usually is credited with the discovery of oxygen

The Importance of Religious Freedom

The top officials of the U.S. Commission on International Religious Freedom have set forth compelling reasons why religious freedom around the world is important. Its Chairperson, Robert P. George, and its Vice Chairperson, Katrina Lantos Swett, have done so in an essay in the Wall Street Journal entitled “Religious Freedom Is About More Than Religion.”

They assert, “To respect fundamental human rights is to favor and honor the [human being] . . . who is protected by those rights—including the rights to freedom of speech, press, assembly and religion.” Therefore, honoring the individual human being favors “human flourishing in its many dimensions. For those who regard humans not just as material beings but also as spiritual ones—free, rational and responsible—it is obvious that their spiritual well-being is no less important than their physical, psychological, intellectual, social and moral well-being.”

Such human flourishing “requires respect for their freedom—as individuals and together with others in community—to address the deepest questions of human existence and meaning. This allows them to lead lives of authenticity and integrity by fulfilling what they conscientiously believe to be their religious and moral duties.”

Moreover, religious “faith by its nature must be free. A coerced ‘faith’ is no faith at all. Compulsion can cause a person to manifest the outward signs of belief or unbelief. It cannot produce the interior acts of intellect and will that constitute genuine faith.” Indeed, coercion “in the cause of belief, whether religious or secular, produces not genuine conviction, but pretense and inauthenticity.”

Religious freedom, therefore, must “include the right to change one’s beliefs and religious affiliation. It also includes the right to witness to one’s beliefs in public as well as private, and to act—while respecting the equal right of others to do the same—on one’s religiously inspired convictions in carrying out the duties of citizenship.”

As a result, “one of the aims of U.S. foreign policy should be to combat . . . [religious] intolerance—not just because religious freedom reduces the risk of sectarian conflict, but more fundamentally because it protects the liberty that is central to human dignity.”

Conclusion

This statement echoes the words of the international legal instruments that appropriately guide the work of the U.S. Commission on International Religious Freedom: the Universal Declaration of Human Rights, which the U.S. supported in the U.N. General assembly in 1948, and the International Covenant on Civil and Political Rights, which the U.S. ratified in 1992.

The Universal Declaration opens with these words in its Preamble: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” It then declares in Article 18, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

These latter words are essentially repeated in Article 18(1) of the International Covenant. Its Article 18(2) goes on to say, “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”

U.S. Needs New Voting Rights Act

Problems exist with the present U.S. voting systems and procedures. Here are just a few:

In the November 2012 general election, many states that were controlled by Republican state legislatures and governors adopted various measures that, in my opinion, were intended to suppress voting by U.S. citizens, including minorities, who were deemed likely to vote for Democratic candidates.
Late this June the U.S. Supreme Court invalidated an important provision of the Voting Rights act of 2006. [1]
Immediately after that Supreme Court decision, some states–most notably Texas [2] and North Carolina–have moved to implement or adopt restrictive voting laws. [3]

This blog has criticized these efforts to restrict voting and that Supreme Court decision. This blog also has proposed ways to expand voting in this country, many of which have been voiced as well by Norman Ornstein, author and Resident Scholar at the American Enterprise Institute.[4]

Here are my suggestions for a new federal Voting Rights Act.

First, every U.S. citizen entitled to vote.

That includes all citizens who have been convicted of felonies and who are still in prison and those who have served their sentences. They are human beings who have interests and opinions, and they have unique experiences of life inside our prisons, which are often neglected in the political debate about allocation of resources.

Now only two states (Maine and Vermont) impose no voting restrictions on felons or ex-felons. Other states impose various restrictions, with 12 states (six in the South) banning ex-felons from voting even after they have completed prison and probation or parole. As a result, an estimated 5.9 million citizens are disenfranchised on this basis, about one-fourth of whom are still in prison. Because 38.2% of these people are African-American, it is also a racial justice issue.

The electorate also should include all children. They too are human beings with interests that should be reflected in elections. This is especially true in an electorate in which older citizens tend to vote in higher percentages and naturally have an interest in programs and services that benefit them. I am a member of the older group and yet believe our political influence needs to be counterbalanced by the voices of the youngest. Creation of a voting system to allow all children to vote would require a lot of careful consideration of how this could be accomplished. It presumably would have parents or guardians voting for their children through a certain age such as 16 or 18.[5]

Second, every U.S. citizen required to vote.

Every citizen should be required to vote at least in national elections.

This is true in many countries so it can be done. Such a system, I believe, would have the beneficial effect of causing political parties and candidates to appeal to voters in the middle of the political spectrum and thereby combat the polarization of our political system. Again, creation of such a system would require careful consideration of how that could be done.

Ornstein and Thomas E. Mann have made such a proposal. One means of enforcing such a law, they say, would be a modest fine, say $15, for failure to vote with increased amounts for repeated failures. Another way would be to provide a small tax credit for voting.

Third, no racial discrimination in voting.

Using the language of the Voting Rights Act of 2006, forbid any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”

Fourth, simplified voting laws and procedure.

To make it easier to vote, Ornstein and Mann offer the following suggestions:

a. A new voter registration regime. Ornstein asserts, “eligible citizens should be presumed registered.” Allow online registration and transfer of such records when the voter moves to a new home by sharing data with private databases. Allow “same-day voter registration available for those not registered via their draft registration or driver’s license. Ideally, Congress would provide the funds to modernize voter registration lists and create a 21st-century voting process in which voters could get personalized ballots printed, with all the offices they are eligible to vote on, at any polling place in their vicinity. Why shouldn’t Americans be able to vote at any nearby polling center?”

b. More easily accessible polling places. Use facilities in or near shopping centers or arenas.

c. Weekend Election “Day.” As Ornstein says, “’Election Day’ should suit contemporary American life: a 24-hour period from noon Saturday to noon Sunday, with early voting the week before. This would eliminate ‘rush-hour’ backlogs early in the morning and at the end of the day, as well as Sabbath problems. If Wal-Mart can stay open 24/7, our democracy can stay open 24 hours once every two years.”

d. Social Security cards as valid voter IDs. Any U.S. citizen, Ornstein asserts, “who can provide proof of a valid Social Security number should be able to obtain, free, a Social Security card with a photo. It should be mandated as acceptable for identification wherever a photo ID is required to vote. Such cards should be available not just at Social Security offices but also at post offices.”

e. Uniform separate federal election ballot. Finally, Ornstein believes “Congress has the clear constitutional right to manage federal elections. A separate ballot for federal races strengthens that control. Other advantages include no more confusing butterfly ballots; there would be no more than three races (president, Senate and House) on a federal ballot. No more provisional ballots or access denied if someone shows up at the wrong polling place; the vote would still count only for those federal offices.”

Conclusion

These voting changes would help make the federal government more accountable to the citizens. Other changes to aid in this effort have been suggested in this blog: certain constitutional changes, elimination of the U.S. Senate’s filibuster rule and reforming the system for creating new congressional districts after the decennial census.

[1] Former Supreme Court Justice John Paul Stevens has criticized the Court’s decision invalidating a provision of the Voting Rights Act.

[2] On July 25th the Department of Justice sued the State of Texas to ask a federal court to require Texas to get permission from the federal government before making voting changes. The suit is based upon section 3 of the Voting Rights Act of 2006 which allows such relief if the Government shows that the jurisdiction has committed constitutional violations with respect to voting. Richard H. Pildes, a New York University professor said, “If this strategy works, it will become a way of partially updating the Voting Rights Act through the courts.” A Washington Post editorial endorsed this approach while also calling on Congress to enact a new statutory formula for comprehensive coverage of states for such preclearance. An editorial in the New York Times also supports this approach as does Washington Post columnist E. J. Dionne, Jr.

[3] New York Times columnist, Charles Blow, points out that almost all of the states that were covered by the Voting Rights Act provision that was invalidated are Republican-controlled and are now wasting “no time . . . to institute efforts to suppress the vote in the next election and beyond.”

4] Thomas E. Mann & Norman J. Ornstein, It’s Even Worse Than It Looks: How the American Constitutional System Collides with the New Politics of Extremism (Basic Books; New York 2012); Ornstein, Let’s enact a new Voting Rights Act, Wash. Post (July 17, 2013).

[5] I originally made such a suggestion in 1996.

Former U.S. Supreme Court Justice Criticizes Its Decision on the Voting Rights Act of 2006

John Paul Stevens, who served as an Associate Justice of the U.S. Supreme Court for nearly 35 years (1975-2010), has issued a stinging rebuke to its recent decision invalidating an important provision of the Voting Rights Act of 2006.

Stevens’ remarks came in his review of a book about the history of that statute: Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy.[1]

As discussed in a prior post, the court on June 25th in an opinion by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held unconstitutional the Act’s formula that determined which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. The Court concluded that the burdens of such pre-clearance on the jurisdictions covered by the formula were not justified by current needs and, therefore, violated basic principles of equal state sovereignty or autonomy over voting.[2]

First, Stevens disputed the major legal premise of the Roberts’ opinion. Instead, Stevens agreed with Justice Ruth Bader Ginsburg’s dissenting opinion in the case that “the principle [of equal sovereignty] “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (Emphasis in Stevens’ book review.)

Second and more importantly, Stevens strenuously objected to the Court’s not respecting the virtually unanimous congressional support for the 2006 re-authorization of the Voting Rights Act after “thorough evidentiary hearings.” Said Stevens,

“The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the [Act].”

Stevens found support for this conclusion in an unlikely source–the dissenting opinion of Justice Antonin Scalia in the case that invalidated the federal Defense of Marriage Act.[3] According to Justice Scalia,

“This [DOMA] case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution [the Supreme Court] in America.”

[1] The Stevens book review is also discussed in The Atlantic and Politico.

[2] Earlier posts provided important background for the Supreme Court’s decision.

[3] The DOMA case is United States v. Windsor, No. 12-307 (June 26, 2013).

Dismissal of U.S. Lawsuit Against Ex-President of Mexico

On July 18th the U.S. District Court for the District of Connecticut dismissed a private lawsuit under the U.S. Alien Tort Statute and Torture Victims Protection Act against Ernesto Zedillo, a former President of Mexico.[1]

The written dismissal order merely states that it was for the reasons stated at the oral argument that day. Those reasons, according to the attorney for Mr. Zedillo, centered on the court’s deferring to the U.S. Department of State’s conclusion that Mr. Zedillo was entitled to immunity as a former head of state of Mexico sued for alleged acts taken in his official capacity. This was confirmed in the transcript of the court’s ruling.

The State Department’s position, which was provided to the court in September 2012, was based upon “principles of immunity articulated by the Executive Branch in the exercise of its constitutional authority over foreign affairs and informed by customary international law, and considering the overall impact of this matter on the foreign policy of the [U.S.].” These principles of officials’ immunity included the following:

Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.'”
Under the U.S. Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
A “sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all his actions.” (Emphasis added.)
For a former official, on the other hand, immunity “is based upon the character of that official’s conduct and extends only to acts taken in an official capacity” with a presumption that “actions taken by a foreign official exercising the powers of his office were taken in his official capacity.”
Such a presumption “is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.”
That presumption is corroborated when “the foreign government itself has asserted that the actions of its official were taken in an official capacity.”

The court’s dismissal also relied upon the U.S.’ advising the court on May 15, 2013, that it did not intend to appear at the July 18th hearing and that it “rests on its [previous] Suggestion of Immunity.” The court saw this advice “as a reaffirmation of the State Department’s Suggestion of Immunity, but even if it were a Statement of Neutrality, as the Plaintiffs’ contend, the fact is that the State Department has not withdrawn its Suggestion of Immunity.”

The U.S. court also noted that on May 23rd an unanimous Mexican appellate court reversed a lower court’s ruling that the Mexican government’s request for Zedillo’s immunity was illegal under Mexican law.[2]

The Mexican appellate court held that the Mexican plaintiffs in the U.S. case were not injured bythat Mexican government’s request because it was a “communiqué between Sates, and is a suggestion or proposal of immunity that the neighboring country [the U.S.] may or may not accept.” The appellate court also denied a motion to have the Mexican Supreme Court of Justice review the case, thereby finally ending the Mexican case.

According to the U.S. court, “even if . . . [the lower Mexican court’s decision had been affirmed], I find that it would ultimately be irrelevant to this Court’s determination of whether the Defendant is immune from this lawsuit because the Plaintiffs have cited no authority, and I’m not aware of any authority, for the proposition that the impropriety of such a request by the Mexican government would be sufficient justification for a court to disregard our own State Department’s Suggestion of Immunity.”

The U.S. case should also be over. Any appeal by the plaintiffs, in my judgment, would be fruitless.

The U.S. case was brought by ten anonymous Mexicans alleging that Mr. Zedillo had been complicit in a a 1997 massacre in the Mexican village of Acteal in the southern state of Chiapas.

[1] Various aspects of this U.S. case have been discussed in prior posts.

[2] The decision of the lower Mexican court was discussed in posts on March 10 and March 26, 2013.

“I don’t want to belong to any club [like the U.S. Senate] that will accept me as a member”

Little did the famous comedian Groucho Marx realize that he was talking about today’s dysfunctional U.S. Senate when many years ago he sent a telegram to a club stating, “PLEASE ACCEPT MY RESIGNATION. I DON’T WANT TO BELONG TO ANY CLUB THAT WILL ACCEPT ME AS A MEMBER.”[1]

Frustration over the current ways of the Senate is often listed as a major reason why many long-time, respected members of the Senate recently have resigned or announced they are not running for re-election in 2014. In addition, both major political parties are having difficulty recruiting qualified candidates to run for the Senate in that election for the same reason.

Recently the popular former Montana Governor, Brian Schweitzer, who is the Democratic Party’s best hope of retaining the Senate seat now held by Democrat Max Bachus, announced that he was not running for the Senate next year. A major reason for this decision, he said, was Washington’s being a “dysfunctional . . . sinkhole” where “most of the people . . . are frauds.”

One of the major reasons for these negative views, which I share, is the Senate’s rules permitting filibusters of pending legislation and judicial and executive nominations. They are, in my opinion, an abomination and unconstitutional as has been discussed in prior posts.

Yet again these rules have been in the recent news because of threatened Republican filibusters of certain presidential nominations and of the July 16th compromise that allows those rules to remain in place in exchange for the Republicans not filibustering seven pending executive nominations.

I am pleased that these pending nominations will receive an up-or-down vote by the Senate. On the other hand, I am disappointed that so much time and attention is spent on this ridiculous side show and that the filibuster rules are still in place.

I am not alone in despairing the current dysfunctionality of the Senate and more generally the federal government. In the most recent Wall Street Journal/NBC News public opinion poll, only 17% had confidence in our national government while only 10% had confidence in the U.S. Congress according to the latest Gallup poll.

Reversing this horrible public distrust of the federal government is important to Gerald F. Seib, the Washington Bureau Chief of the Wall Street Journal. He suggests the following as important means to that end:

Fix the federal governmental system. The “rules of the Senate need to be changed to curtail the ability of a minority of Senators, or sometimes a single one, to make progress grind to a halt.” In addition, “States need to stop drawing congressional districts that ensure deep and paralyzing polarization by making so dark red or dark blue that only the most ideologically rigid candidates bother to run.”
Modernize the federal government so it is more useful in our everyday lives. For this proposition, Seib praised a recent speech by President Obama which said he had “directed the Cabinet to develop an aggressive management agenda . . . that delivers a smarter, more innovative, and more accountable government for its citizens.” The President also noted that last year he had “asked Congress for the authority to reorganize and consolidate the federal bureaucracy” and that his Administration had found more efficient “ways to deliver the services that citizens expect in smarter, faster, and better ways.”
Manage the deficit. Although Seib says eliminating the deficit any time soon would be bad for the economy and should not be done, the public needs to sense that the problem is “being tamed intelligently.”

I merely say, “Amen, Brother.”

[1] A prior post chuckled over the humorous correspondence between Groucho and Joseph Welch, the attorney for the U.S. Army in the 1954 Army-McCarthy hearings in the U.S. Senate.

The “Revolutionary Summer” of 1776

Today is the 237th anniversary of the American Declaration of Independence of July 4, 1776.

That document, however, is only one of the important events in Revolutionary Summer: The Birth of American Independence, the latest book by American historian, Joseph J. Ellis.[1] Here are comments on only a few of those other important events.[2]

In May of that year, the Continental Congress adopted a resolution that John Adams, its principal author, later saw as the real declaration of independence. This resolution “recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general. “[3]

That resolution’s resolution preamble set forth an indictment of King George III. He had “excluded the inhabitants of these United Colonies from the protection of his crown; And whereas, no answer, whatever, to the humble petitions of the colonies for redress of grievances and reconciliation with Great Britain, has been or is likely to be given; but, the whole force of that kingdom, aided by foreign mercenaries, is to be exerted for the destruction of the good people of these colonies; And whereas, it appears absolutely irreconcilable to reason and good Conscience, for the people of these colonies now to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain.”

Therefore, the resolution’s preamble continued, “it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies, for the preservation of internal peace, virtue, and good order, as well as for the defence of their lives, liberties, and properties, against the hostile invasions and cruel depredations of their enemies.”

Thereafter the legislatures of New England and Virginia voted in favor of independence while those in New York and Pennsylvania did not. But in Pennsylvania mechanics, artisans and farmers created a provisional government that supported independence. A similar movement in New York was blocked, and its legislature did not join the independence movement until after the Congress had issued its Declaration of Independence.

More generally, the Ellis book asserts that the period from May through October of 1776 was the pivotal moment in American history when “a consensus for American independence emerged and was officially declared, the outlines for an American republic were first proposed, the problems that would shape its future were faced and finessed, and the largest armada ever to cross the Atlantic arrived to kill the American rebellion in the cradle, which it then very nearly did.” The political and military events of this time influenced each other and need to be told together, says Ellis.

As the author of several posts about the American Revolutionary War through the summer of 1776,[4] I was reminded by the Ellis book that for nearly 15 months the War had been fought without a collective decision that the objective for the colonists was independence from Great Britain. It started at the Battle of Lexington and Concord, Massachusetts in April 1775 and continued through the American siege of Boston and the Battle of Bunker Hill. This uncertainty about the American purpose in the War officially ended with the U.S. Declaration of Independence of July 4, 1776, or with the May congressional resolution previously mentioned.

Until the Declaration of Independence the official policy of the Continental Congress remained loyalty to King George III, and one of the congressional leaders, John Dickinson of Pennsylvania, ardently believed that seeking independence would be suicidal to be avoided at almost any cost. Dickinson and others in the Congress sought to find a compromise that would preserve colonial rights without independence and that would end the War.[5] Similar efforts in Britain were lead by Edmund Burke in the House of Commons and by William Pitt, the Earl of Chatham, in the House of Lords.

These efforts, of course were unsuccessful, and the War resumed that year with British victories in the Battle of Long Island (Brooklyn), the Continental Army’s withdrawal from Manhattan (after its success in the Battle of Harlem Heights) and the Battle of White Plains.

These British military victories were made possible by the massing of a large British military force in New York that year.

As Ellis notes, in early July, Lord Germain, the British Foreign Secretary, “managed to defy the insuperable obstacles of space and distance to coordinate [a] three-pronged assault so that it converged on Staten Island … [nearly] simultaneously.” First under the command of General William Howe were the 9,000 British troops that had evacuated Boston and retreated to Halifax, Nova Scotia. Second under the command of General Henry Clinton were 2,900 British troops from the South Carolina coast. Third under the command of Admiral Richard Howe were 150 ships, 20,000 troops and a six-month supply of food and munitions from Great Britain; it was “the largest armada to cross the Atlantic” before World War I. This accomplishment “was eloquent testimony to the matchless prowess of the Royal Navy.”

Indeed, the British, and especially its military leaders (General William Howe and Admiral Richard Howe) had ample reason to believe that the obvious superiority of their forces would cause the colonists to recognize the futility of their effort and to seek peace. As a result, the Howe brothers repeatedly refused to press their advantage in the field and destroy the Continental Army. In retrospect, they “lost a golden opportunity to end the American rebellion at its inception.”

The British military solution, however, had precisely the opposite effect on the American people and on the Continental Congress. It helped to build support for American independence.

As he concludes his book, Ellis says there were three major results of the Revolutionary Summer. First, “the Continental Congress was immune to any British proposal for reconciliation.” Second, there was no American consensus on how the former colonies would be united and as a result no consensus on creating a fully empowered Continental Army. Third, these prior results “virtually ensured a long conflict that the British could not win for political reasons and that the Americans could not win for military reasons.”

[1] Ellis is History Professor at the Commonwealth Honors College at the University of Massachusetts at Amherst. He previously taught at Mount Holyoke College and at the United States Military Academy at West Point. He is one of the nation’s leading scholars of American history and the author of prize-winning books about the revolutionary era.

[2] Reviews of the book have appeared in the New York Times by Andrew Cayton and by Michiko Kakutani and in the Washington Post and the Wall Street Journal.

[3] In the Spring of 1776 John Adams focused his attention on devising a framework for an American government after independence, and he wrote four memoranda on the subject, the last of which was published in April as “Thoughts on Government.” Each state government, it suggested, should have an elected governor as executive, an elected bicameral legislature and a judiciary.

[4] The prior posts provide an overview of the American Revolutionary War and discussions of the Battle of Lexington and Concord, the mustering of the Minute Men, the Siege of Boston, the Battle of Bunker Hill, the Campaign for New York and New Jersey, the Battle of Brooklyn (Long Island), the Battle of Harlem Heights and the Battle of White Plains.

[5] In July of 1775 Dickinson was the principal author of the American Declaration on Causes and Necessities of Taking Up Arms that has been seen as a statement of a self-defense rationale for the American rebellion that is consistent with the doctrine of just war.

U.S. Supreme Court Invalidates Key Provision of Voting Rights Act of 2006

As widely reported, the U.S. Supreme Court in Shelby County v. Holder recently held unconstitutional a key provision of the Voting Rights Act of 2006.[1]

That provision, section 4, which was part of the original statute enacted in 1965, established a formula to determine which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. Such pre-clearance approval could be obtained only if the proposed change was shown to have neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.”

Section 4’s formula, as amended in 1975, established as “covered jurisdictions” those States or political subdivisions that had maintained a test or device (literacy or knowledge tests, good moral character requirements, vouchers from registered voters, providing English-only voting material s in places where over 5% of voting-age citizens spoke a language other than English) as a prerequisite to voting as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.

Majority Opinion

The opinion for the Court by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held that this formula imposed current burdens on the covered jurisdictions that were not justified by current needs. Section 4, therefore, violated basic principles of equal state sovereignty or autonomy over voting and was unconstitutional. This conclusion was reached even though the Chief Justice acknowledged that “voting discrimination still exists.”

The fundamental factual premise of the opinion was the assertion that the U.S. had significantly changed in racial discrimination in voting since 1965. As the Chief Justice said, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”[2]

Dissenting Opinion

Justice Ginsburg, who was joined by Justices Breyer, Sotomayor and Kagan, issued a stinging dissenting opinion.

She emphasized that the Fifteenth Amendment to the Constitution granted to Congress, not the courts, the power to enact legislation to enforce the Amendment’s ban on racial discrimination in voting. Moreover, the Supreme Court itself repeatedly has held that Congress’ judgment on such matters warrants “substantial deference” and that congressional power is “at its height” when it so acts.

As a result, the proper question for the courts is whether Congress had employed “rational means” in re-enacting section 4 as part of the 2006 Act. According to the dissenting opinion, section 4 meets that test. There was abundant evidence of continued racial discrimination in voting before Congress when it adopted the 2006 Act, and Congress acted with “great care and seriousness” in so doing.

Indeed, Justice Ginsburg stressed, the formula in section 4 is subject to statutory provisions “allowing jurisdictions to ‘bail out’ of preclearance, and for court-ordered “bail ins.” These mechanisms were seen by Congress as “effective means of adjusting the [Act’s] coverage over time.” Therefore, the dissent asserted it is erroneous for the Court’s majority to see the Act as “static, unchanged since 1965. Congress designed the [statute] to be a dynamic statute, capable of adjusting to changing circumstances.”

In short, the dissent says, “Hubris is a fit word for today’s demolition of the [statute].” The majority of the Court “errs egregiously by overriding Congress’ decision.”

Conclusion

The key failure of the majority opinion for me is its narrow focus on the coverage formula in section 4 instead of looking at how the formula works in the statute as a whole. As Justice Ginsburg and previously the D.C. Circuit emphasized, the coverage formula has to be seen with the statutory mechanisms for adjusting coverage to new circumstances through the bail-in or bailout provisions. It is dynamic and capable of adjusting to new circumstances.

Indeed, the Supreme Court did just that in 2009 in Northwest Austin Municipal Utility District No. One v. Holder. The Court’s opinion by Chief Justice Roberts provided a broad reading of the bail out provision to allow the political subdivision in the case to bailout from coverage under sections 4 and 5.

[1] The Supreme Court opinions in Shelby County are available online. Prior posts have discussed the original Voting Rights Act of 1965, the Voting Rights Act of 2006, a prior Supreme Court decision on the latter statute (Northwest Austin), the D.C. Circuit’s decision in Shelby County and the recent Supreme Court oral argument in that case.

[2] Justice Thomas issued a concurring opinion that section 5 of the Act was unconstitutional as well.

President Abraham Lincoln’s Involvement in the Military Commission’s Convictions and Sentences of the Dakota Indians

Before he participated in the U.S. Military Commission’s convictions and sentences of the Dakota Indians, President Abraham Lincoln was involved the U.S.-Dakota War itself in August-September 1862.[1]

Lincoln reentered this drama on October 14th at a Cabinet meeting when Edwin Stanton, the Secretary of War, read aloud a report from General John Pope that the War was over and that the Army held about 1,500 Dakota prisoners. “Many, Pope said, “are being tried by military commission for being connected in late horrible outrages and will be executed.”[2]

Lincoln and the Cabinet were upset with Pope’s apparent plan to execute many of the captives, and three days later Pope was directed that there be no executions without the President’s approval.

Roughly three weeks later (on November 8th), after the completion of the military commission trials, Lincoln received a telegram from Pope containing a list of the 302 Dakota men who had been convicted and ordered to be hung.[3]

Immediately (on November 10th) the President by a telegram put all of these convictions on hold pending his Administration’s review of these convictions. Lincoln instructed Pope to submit the “full and complete” trial records for these cases to the President along with any materials that might indicate which of the men were the most guilty along with a “careful statement” regarding the commission’s judgments.

This instruction annoyed Pope, who responded the next day not with a “careful statement,” but with a vehement objection to the order. According to the General, “the only distinction between the culprits is as to which of them murdered most people or violated most young girls.” Moreover, Pope said, “The people of this State [of Minnesota] . . . are exasperated to the last degree, and if the guilty are not all executed, I think it nearly impossible to prevent the indiscriminate massacre of all the Indians–old men, women and children.”

Pope reiterated these sentiments on November 24th when he urged the President to make a speedy decision. He warned, “Organizations of inhabitants are being rapidly made with the purpose of massacring these Indians.”

Exactly what the presidential review would entail was not immediately clear. Lincoln contemplated setting guidelines for executing “only a part” of the 302 men and sending the cases back to Minnesota for an “officer on the ground” to make case-by-case designations. But on December 1st Joseph Holt, the Judge Advocate General, advised the President that the power of review could not be delegated.

Therefore, that same day (December 1st), the President asked two aides (George C. Whiting and Francis H. Ruggles) to make a “careful examination” of all the transcripts and identify those Dakotas who “had been proved guilty of violating females.” The aides soon responded there were only two who had been so convicted.

Lincoln was surprised so few rapists were among the 302 on death row. Therefore, the President asked his aides to make “a further examination” to identify “all who were proven to have participated in massacres, as distinguished from participation in battles.” Whiting and Ruggles did just that and reported that 38 additional Dakota men had participated in massacres. The report contained a brief summary of the proof against each man plus the transcripts of their trials.

The first man on the execution list was Joseph Godfrey, the escaped black slave who had been the first to be tried by the military commission. The summary of his case by Whiting and Ruggles said, “Engaged extensively in the massacres, and, though sentenced to be hung, recommended to have his punishment commuted to imprisonment for ten years, because of the valuable testimony and information furnished the commission.”

On December 5th or 6th Lincoln reviewed his aides’ report and trial transcripts. He then personally penned his execution order to Colonel Sibley with the names and trial numbers of 39 men to be executed on December 19th.[4] They were the 2 convicted for rape and 37 of the 38 men convicted for participation in massacres. The only one on the latter list of 38 who was not included on the execution list was Joseph Godfrey.

On December 11th in response to a Senate resolution, the President forwarded to the Senate the Whiting-Ruggles report, the trial transcripts and related materials. In his cover letter Lincoln referred to his aides’ list of 38 men convicted for participation in massacres, but said, “One of the [38 men] . . . is strongly recommended by the [military] commission which tried them, for commutation to ten years’ imprisonment.” Lincoln, however, did not mention the name of this individual (Godfrey) or his black race. This review, Lincoln added, was done “to not act with so much clemency as to encourage another outbreak on the one hand, nor with so much severity as to be real cruelty on the other.”

Throughout this period, the President and his Administration were under great pressure to approve all of the ordered executions in addition to the pleas from General Pope.

Minnesota Governor Alexander Ramsey, who was running for election to the U.S. Senate in January 1863, urged the President to order the execution as soon as possible of all those condemned by the commission. “It would be wrong upon principle and policy to refuse this,” Ramsey said. “[Otherwise] private revenge would . . . take the place of official judgment on these Indians.”

Minnesota’s other public officials and newspapers echoed these sentiments as did letters, petitions and memorials submitted to the White House.

Virtually the only Minnesotans suggesting some mercy were Minnesota’s Episcopal Bishop Henry P. Whipple and other pastors.

Lincoln perhaps drew some comfort from a December 17th petition from 38 Dakota leaders that said “the bad [Dakotas] ought to be punished” and all “of the Indians who were engaged in killing the white men and women and children should be hanged.” The “good” Indians, on the other hand, should be “well treated” and permitted to return to their homes on the reservation.

On December 23rd, Lincoln directed the reprieve of one of the 39 to be executed as a result of a last minute plea by a Presbyterian missionary (Rev. Thomas Williamson) and his sister (and endorsed by Brigadier-General Sibley) on the ground that the certain evidence at the trial was unreliable.

Accordingly on December 26th, 38 Dakota men were hung to their death in Mankato, Minnesota.

The fate of the other 264 Dakota men (including Mr. Godfrey) who had been convicted and sentenced to death by hanging by the military commission was not addressed directly by President Lincoln. But they were not pardoned. Instead, they were transferred to a U.S. detention facility in Davenport, Iowa, where most of them spent the next three years. After they were released from detention, they were transferred to several reservations for the Dakota. Joseph Godfrey went to a Nebraska reservation where he lived until his death in 1903.[5]

[1] As discussed in a prior post, On August 21, 1862, Lincoln’s focus on the worsening situation in the Civil War was interrupted by the news of the start four days earlier of the U.S.-Dakota War in southern Minnesota. About a week later the President reluctantly granted a de facto, indefinite extension of time for Minnesota to fulfill its quota for more troops for the Civil War so that the State could provide men to fight the Dakota War. In addition, on September 5th the President created a new military Department of the Northwest to be in charge of the Dakota War under the command of General John Pope.

[2] This post is based upon David A. Nichols, Lincoln and the Indians: Civil War Policy and Politics Ch. VIII (Minn. HIst. Soc’y Press 1978, 2000, 2012) and Walt Bachman, Northern Slave Black Dakota:The Life and Times of Joseph Godfrey at 221-22, 228-32, 239, 243-45, 252-56, 262-66,, 352-56 (Pond Dakota Press; Bloomington, MN 2013).

[3] The commission had sentenced 307 Indians to be hung, but five were removed from the execution list before it was submitted to the President.

⁴The original of the President’s order is at the Minnesota Historical Society. Davis, TWO Sioux War Orders: A Mystery Unraveled, Minn. History at 117 (Fall 1968). Through a subsequent exchange of telegrams the date of the executions was postponed to December 26th.

⁵ An evaluation of President Lincoln’s involvement in the U.S.-Dakota War and of legal issues relating to the commission trials and judgments will be the subjects of other posts.

“Just As I Am”

On Sunday, June 16, 2013 (Father’s Day), the Chamber Ensemble of Minneapolis’ Westminster Presbyterian Church sang the moving and well-known “Just As I Am.” Here are the lyrics:

Just as I am, without one plea,
But that Thy blood was shed for me,
And that Thou bidst me come to Thee,
O Lamb of God, I come, I come.
Just as I am, and waiting not
To rid my soul of one dark blot,
To Thee whose blood can cleanse each spot,
O Lamb of God, I come, I come.
Just as I am, though tossed about
With many a conflict, many a doubt,
Fightings and fears within, without,
O Lamb of God, I come, I come.
Just as I am, poor, wretched, blind;
Sight, riches, healing of the mind,
Yea, all I need in Thee to find,
O Lamb of God, I come, I come.
Just as I am, Thou wilt receive,
Wilt welcome, pardon, cleanse, relieve;
Because Thy promise I believe,
O Lamb of God, I come, I come.
Just as I am, Thy love unknown
Hath broken every barrier down;
Now, to be Thine, yea, Thine alone,
O Lamb of God, I come, I come.

The lyrics were written by Charlotte Elliott (1789-1871), an English poet and hymn writer. Because of medical problems, she was confined to home and unable to attend her church (the Church of England). In spite of being raised in a Christian home, she had conflicts and doubts about her faith and was unsure of her relationship with Christ, but she was moved in 1834-35 to write these words of assurance about Jesus’ loving her just as she was. This is but one of 150 hymns that she wrote. It was used as the hymn for alter calls in Billy Graham crusades.

The melody for this hymn was composed by William Bradbury (1816-1868), a U.S. musician and composer of many hymn melodies. The arrangement that was sung at Westminster was by Rev. C. G. (Sonny) Walden, III, a minister of music at United Methodist Churches in Georgia and an active conductor, teacher, singer and award-winning composer.

The bulletin for this worship service and audio and video recordings of the service are available online.