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Liberty's Blueprint Columns
"Listen to George Washington"
July 21, 2008
America’s wars in Iraq and Afghanistan are not the first time in our history we have had to negotiate the treacherous crossroads of religious intolerance and military success. President George W. Bush would do well to learn the lessons provided by George Washington, our first commander in chief, who handled similar difficulties with sensitivity and courage.
This spring was a particularly bad time for those hoping that America would lessen the sectarian hatred in Iraq by teaching the virtues of religious pluralism. On May 9, an American sniper stationed in Radwaniyah, a town west of Baghdad, used the Koran for target practice, riddling the book with 14 bullet holes.
Just a few weeks later, news services reported that American soldiers guarding the entrance to the city of Fallujah were trying to convert the town’s residents to Christianity. Those entering the city were greeted by armed soldiers handing out coins that said on one side “Where will you spend eternity?” The other side of the coin declared: “For God so loved the world, that He gave His only begotten Son, that whoever believes in Him shall not perish, but have eternal life. John 3:16.”
Even apart from the obvious constitutional concerns with the U.S. military supporting a particular religious faith, these incidents are extraordinarily harmful to America’s self-interest. It is difficult to imagine what would make the war on terrorism more difficult than for the United States to be perceived as waging its own religious crusade. Not only does such an impression cause predictable outrage among many Muslims in Iraq and around the world, it also lends valuable support to those insurgents trying to foster hostility against American troops in Iraq.
Unfortunately, the response of our current commander-in-chief has been awkward and inadequate. Accordingly to his press secretary, Dana Perino, Bush expressed his “concern” about the shooting incident in a private phone call to Iraqi Prime Minister Nuri al-Maliki and “apologized for that, in the sense that he said that we take it very seriously.” Even more troubling than the peculiar definition of “apology”—which seems carefully designed to avoid the expression of true regret—is the fact that the president declined to issue a public condemnation in his own voice.
Significantly, Bush also has not spoken out against the practice of proselytizing by American troops. It is true that military rules bar soldiers from “proselytizing of any religion, faith, or practice,” so activities such as those which occurred in Fallujah are clear violations of military regulations. But there does not seem to be a concerted effort to deal with the problem.
It has been known for some time that certain evangelical groups have been encouraging American troops to try to convert Iraqis. The Web site of Mission Network News has reported that Bible Pathway Ministries provided “devotionals” to members of the 101st Airborne Division to be used as “missionary tools” in Iraq. An officer in that division stated that “the soldiers who are patrolling and walking the streets are taking along this copy, and they’re using it to minister to the local residents. Our division is also getting ready to head toward Afghanistan, so there will be copies heading out with the soldiers.”
Another evangelical Web site provides advice for circumventing military rules so that U.S. soldiers can distribute Christian comic books, depicting Mohammed and Muslims burning in hell, to Iraqi youth.
AN ONGOING PROBLEM
Attempts to use the American military to proselytize in Iraq have been an ongoing problem. Last year, Operation Straight Up, an evangelical group that is an approved member of the Department of Defense’s “America Supports You” program, prepared “freedom packages” to send to soldiers in Iraq. These packages contained the video game “Left Behind: Eternal Forces” in which, according to the game’s developer, players “combat the Antichrist’s forces on two battle fronts—physical & spiritual warfare.”
More disturbingly, the packages contained a book, More Than a Carpenter, which is touted as “one of the most powerful evangelism tools worldwide.” The versions in the packet were printed in not only English but in Arabic, for easy distribution to Iraqi civilians.
Only after news about the “freedom packets” was made public did the Defense Department step in to halt their distribution.
The president’s reticence to address this activity directly stands in stark contrast to the example set by our first commander-in-chief. At the beginning of the Revolutionary War, George Washington loudly and unequivocally spoke out against the short-sightedness of soldiers disrespecting the religions of others.
Then, it was Catholics who were being treated contemptuously. In 1777, for example, John Jay, who would become one of the authors of the Federalist Papers as well as America’s first chief justice, proposed that New York state deny civil rights to “the professors of the religion of the church of Rome” unless they “renounce and believe to be false and wicked, the dangerous and damnable doctrine, that the Pope, or any other earthly authority, have power to absolve men from sins.”
Although his proposal was defeated, he was able to have the state constitution require immigrants to “abjure and renounce all allegiance” to the pope before becoming citizens.
Tolerance toward Catholics was no greater for many in the Continental Army. The immediate threat that Washington faced was soldiers’ planned observance of Guy Fawkes Day. In a custom that began in England, wild celebrations were held on Nov. 5, commemorating the discovery of the 1605 plot to blow up the House of Parliament in retaliation for the persecution of Catholics by King James I. The highlight of the festivities occurred when celebrants would burn the pope in effigy.
Washington was especially concerned with the effect such a display would have on the relationship between the colonies and Canada, which had a large Catholic population. On Nov. 5, 1775, Washington issued a general order condemning “that ridiculous and childish custom of burning the Effigy of the pope.” He expressed shock that officers and soldiers would be “so void of common sense,” as to not appreciate the “impropriety” of such actions when the colonies were trying to establish an alliance with the people of Canada. Thus, Washington concluded, “at such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused.”
President Bush must make a similar, unambiguous statement to all those under his command. It is time for our commander in chief to remind all who serve in America’s military that we are striving to win the confidence and trust of the Muslim community in Iraq and elsewhere and that “to be insulting their Religion, is so monstrous, as not to be suffered or excused.”
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ARTICLE II of the Constitution declares that “No person except a natural-born citizen ... shall be eligible to the office of president.” This undemocratic provision could prevent voters from selecting their top choice, be it Arnold Schwarzenegger, the Austrian-born governor of California, or Jennifer Granholm, the Canadian-born governor of Michigan.
We cannot just wish away inconvenient constitutional language. Clearly, a child born in a foreign country to two non-American parents cannot ascend to the nation’s highest office. But does the Constitution also prohibit John McCain — who was born to two Americans in the Panama Canal Zone in 1936, while his father served in the Navy — from becoming president?
The Constitution does not define the phrase “natural-born citizen,” and there was virtually no discussion of it by those who drafted or ratified the Constitution. The language originated in a letter that John Jay, the future chief justice of the United States, wrote to George Washington during the Constitutional Convention.
“Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government; and to declare expressly that the command in chief of the American Army shall not be given to nor devolve on, any but a natural-born citizen,” Jay wrote.
In a short note to Jay, Washington replied cryptically, “I thank you for the hints contained in your letter.” Two days later, the requirement that the president be a “natural-born citizen” was formally proposed to the Convention. The proposal passed unanimously without debate.
In March 1790, within a year after first convening, the first Congress elected under the new Constitution enacted our first naturalization law. That Congress, which included 20 members who had been delegates to the Constitutional Convention, decreed that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens.”
History, however, is not free from ambiguity. When Congress five years later passed a naturalization law that replaced the 1790 law, it said merely that these children “shall be considered citizens.”
And those hoping for guidance from England find that while English common law indicated that nationality was based on where one was born, English statutes in the late 18th century gave full citizenship rights to children born in foreign lands to English parents.
We can be reasonably certain that the purpose of the framers was to prevent a European nation from installing a member of its royal family to rule our country. But the language of the Constitution plausibly permits multiple meanings compatible with that purpose. What is to be done when there is no easy answer?
In such a case, it would be foolish to select an interpretation that defeats other constitutional values. The phrase “natural-born citizen” should be given a meaning consistent with our transcendent right to select those whom we believe are most fit to govern us.
Unless the Constitution is amended, we must accept that we are barred from electing the next Albert Einstein to the White House. But ambiguous constitutional language should not be interpreted to deprive Americans of the right to vote for children of their fellow citizens who, by happenstance or due to their parents’ military obligations, chance to be born overseas.
Michael I. Meyerson, a professor of law at the University of Baltimore, is the author of “Liberty’s Blueprint: How Madison and Hamilton Wrote The Federalist, Defined the Constitution and Made Democracy Safe for the World.”
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The Federalist Papers occupy a strangely contradictory position in today’s intellectual environment. This collection of essays, written by Alexander Hamilton and James Madison (with a small assist from John Jay) to encourage ratification of the Constitution, is required reading for high school and college students, as well as those arguing before the Supreme Court. The essays have been cited in over 300 Supreme Court decisions, with the number of citations increasing every decade.
Nonetheless, a surprisingly large number of respected scholars contend that the Federalist Papers are a mere historical relic with no contemporary relevance. Many even disparage the quality of the essays and question the role they played in the ratification process. The Federalist [as the essays were originally titled] was, they say, “an almost total failure” when written, and “cannot be relied on for assistance in interpreting and applying legal rules.”
This is a peculiar fate for a work which contains such an array of insights on politicians, human nature, democracy, greed, and power that Theodore Roosevelt praised it as “on the whole the greatest book dealing with applied politics that there has ever been.” Its dismissal by large segments of the legal community is even more astounding when one recalls that Chief Justice John Marshall wrote that The Federalist was “a complete commentary on our Constitution, and is appealed to by all parties.”
The disconnect between the historic respect for The Federalist and its modern detractors can be traced to several different purported problems with the essays. A review of these critiques, however, reveals that The Federalist does indeed belong on the required reading list for all Americans.
The first set of criticisms argues that the essays were not widely read. Historian Elaine Crane found, for example, that only twelve newspapers outside of New York State printed any of the essays, and most of those printed only a few. This analysis, however, misses the way that The Federalist was distributed during the ratification debate. Not only do we know that individual copies of the essays were frequently mailed from one state to another, a focus on newspapers overlooks the fact that it was as a two-volume book that The Federalist had its greatest impact. Copies of the book were sent to many of the delegates to both the New York and Virginia ratifying conventions. We now know that the book was distributed throughout the new nation. One Maryland delegate to that state’s ratifying convention, James McHenry, received his copy directly from the secretary of Congress, Charles Thomson.
Some modern critics of The Federalist assert that even when read, the essays were just P.R. and bad P.R. at that. After all, in New York State, the birthplace of the essays, the opponents of ratification, the Anti-Federalists, outpolled the Federalists by more than two-to-one, electing forty-six delegates to the state’s ratifying convention compared with merely nineteen pro- ratification delegates.
The main accomplishment of the essays, however, was educational: to explain to those considering ratification both the details of how the government would operate under the newly-minted Constitution, as well as the theoretical justification for the decisions made in Philadelphia. The Federalist’s deepest intellectual accomplishment may have been that, in describing how the Constitution would work, it made logical sense of the document as a whole. The Federalist was able to explain to a skeptical nation how this lean political document, created by fifty-five delegates after four months of negotiation and compromise, could be understood as a coherent whole that reflected the principles of the American Revolution.
Virtually every individual destined to become a dominating figure in the development of American law praised The Federalist during the ratification debate. James Kent, who later would become chief judge of New York’s Supreme Court and the author of the classic “Commentaries of American Law,” James Iredell, a future justice of the Supreme Court, and future Chief Justice John Marshall repeatedly extolled the virtues of the essays. As Noah Webster wrote, the essays are “well calculated . . . to impress upon candid minds, just ideas of the nature of republican governments, of the principles of civil liberty, and of the genius and probable operation of the proposed Federal Constitution.”
The final contemporary assault on The Federalist contends that it is useless as both an outdated work and as the product of a reactionary, and in the case of Madison, slave-owning, mindset. These arguments can only be made by those who have not read the essays closely.
While the nature of our government, with its enormous administrative bureaucracy, two dominant political parties, and large corporations financing candidates and lobbying elected officials, has undoubtedly changed since the eighteenth century, what remains unchanged is the overall structure of the government. Power is still separated both horizontally, between the legislative, executive, and judicial branches, and vertically, between the federal and state governments.
More importantly, the danger that those with political power will tend to want more, or, in Madison’s phase, the fact that “power is of an encroaching nature,” remains unchanged. The need, as described in The Federalist, to have each branch of government control the other, that “ambition must be made to counteract ambition”, is especially critical in modern times.
Finally, it is a gross misreading of the essays to treat them as an apology for privilege and discrimination. The moral core of the essays was that simple majority rule was dangerous because it could easily lead to oppression of minorities. This was not, as some have claimed, a desire to protect the wealthy few from the impoverished masses.
In his most famous essay, Federalist 10, Madison declared that the most “common and durable” reason that society will ever be segmented is economic—“the various and unequal distribution of property.” People’s interests vary depending on whether they are debtors or creditors; farmers, manufacturers, and bankers, affected differently by various tax and trade policies, will always be at odds over the proper path for the government to follow.
But in his discussion of the causes of factions, Madison explored many aspects of the human condition apart from the merely financial. In fact, he began his analysis with the simple observation that mortal man is “fallible.” Since fallible people will inevitably make errors, he said, subsequent disagreements as to wisdom and truth are equally inevitable.
Religion was seen a potentially virulent source of majoritarian oppression. It was, in fact, Madison’s own experience fighting for religious freedom in Virginia several years earlier which provided most of the emotional power for his discussion of the abuses that can be inflicted by majority factions. And, even when no obvious cause for disagreement exists, Madison concluded, “the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.” He did not give any example of a fanciful distinction in The Federalist, which is unfortunate, because he had been much more forthcoming behind the closed doors of the Constitutional Convention. In a statement that was not to be made public until after his death, Madison observed that, in America, the ability of the white majority to impose the institution of slavery was a prime example of the destructive power of factions. As he said, “We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.”
Even without this clear indictment of majoritarian tyranny, The Federalist reminds us of the need to ensure that our Constitutional government protects the politically powerless. In a warning that is as important today as in 1787, as relevant around the world as in the United States, Madison reminds us that, “If a majority be united by a common interest, the rights of the minority will be insecure.”
The Federalist offers numerous other lessons as well. Its analysis of the separation of powers can illuminate our understanding of the battle between the president and Congress over Iraq and the war on terrorism. The dividing line between the federal and state governments that Madison and Hamilton labored to explicate can be seen at the heart of such diverse issues as the Clean Air Act and medical marijuana. We should continue reading The Federalist because each generation must be taught the essays’ central observation that all power can be abused, no matter how virtuous those wielding it may be.
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