The Magna Carta, the Bill of Rights, and the Struggle for Human Rights

The Rule of History: Magna Carta, the Bill of Rights, and the hold of time.

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by Jill LePore

April 20, 2015 Issue

“This Universal Declaration of Human Rights may well become

the international Magna Carta of all men everywhere.”

- Eleanor Roosevelt

"There are no certainties in history. There are only struggles for justice,

and wars interrupted by peace."

- Jill LePore

The reign of King John was in all ways unlikely and, in most, dreadful. He was born in 1166 or 1167, the youngest of Henry II’s five sons, his ascension to the throne being, by the fingers on one hand, so implausible that he was not named after a king and, as a matter of history, suffers both the indignity of the possibility that he may have been named after his sister Joan and the certain fate of having proved so unredeemable a ruler that no king of England has ever taken his name. He was spiteful and he was weak, although, frankly, so were the medieval historians who chronicled his reign, which can make it hard to know quite how horrible it really was. In any case, the worst king of England is best remembered for an act of capitulation: in 1215, he pledged to his barons that he would obey “the law of the land” when he affixed his seal to a charter that came to be called Magna Carta. He then promptly asked the Pope to nullify the agreement; the Pope obliged. The King died not long afterward, of dysentery. “Hell itself is made fouler by the presence of John,” it was said. This year, Magna Carta is eight hundred years old, and King John is seven hundred and ninety-nine years dead. Few men have been less mourned, few legal documents more adored.

King John signs the Magna Carta King John signs the Magna Carta
http://en.wikipedia.org/wiki/Magna_Carta

Magna Carta has been taken as foundational to the rule of law, chiefly because in it King John promised that he would stop throwing people into dungeons whenever he wished, a provision that lies behind what is now known as due process of law and is understood not as a promise made by a king but as a right possessed by the people. Due process is a bulwark against injustice, but it wasn’t put in place in 1215; it is a wall built stone by stone, defended, and attacked, year after year. Much of the rest of Magna Carta, weathered by time and for centuries forgotten, has long since crumbled, an abandoned castle, a romantic ruin.

Magna Carta is written in Latin. The King and the barons spoke French. “Par les denz Dieu!” the King liked to swear, invoking the teeth of God. The peasants, who were illiterate, spoke English. Most of the charter concerns:

• feudal financial arrangements (socage, burgage, and scutage),
• obsolete measures and descriptions of land and of husbandry (wapentakes and wainages),
• and obscure instruments for the seizure and inheritance of estates (disseisin and mort d’ancestor).

“Men who live outside the forest are not henceforth to come before

our justices of the forest through the common summonses, unless they are in a plea,”

one article begins.

Magna Carta’s importance has often been overstated, and its meaning distorted. “The significance of King John’s promise has been anything but constant,” U.S. Supreme Court Justice John Paul Stevens aptly wrote, in 1992. It also has a very different legacy in the United States than it does in the United Kingdom, where only four of its original sixty-some provisions are still on the books. In 2012, three New Hampshire Republicans introduced into the state legislature a bill that required that “all members of the general court proposing bills and resolutions addressing individual rights or liberties shall include a direct quote from the Magna Carta which sets forth the article from which the individual right or liberty is derived.” For American originalists, in particular, Magna Carta has a special lastingness. “It is with us every day,” Justice Antonin Scalia said in a speech at a Federalist Society gathering last fall.

Much has been written of the rule of law, less of the rule of history. Magna Carta, an agreement between the King and his barons, was also meant to bind the past to the present, though perhaps not in quite the way it’s turned out. That’s how history always turns out: not the way it was meant to. In preparation for its anniversary, Magna Carta acquired a Twitter username: @MagnaCarta800th. There are Magna Carta exhibits at the British Library, in London, at the National Archives, in Washington, and at other museums, too, where medieval manuscript Magna Cartas written in Latin are displayed behind thick glass, like tropical fish or crown jewels. There is also, of course, swag. Much of it makes a fetish of ink and parchment, the written word as relic. The gift shop at the British Library is selling Magna Carta T-shirts and tea towels, inkwells, quills, and King John pillows. The Library of Congress sells a Magna Carta mug; the National Archives Museum stocks a kids’ book called “The Magna Carta: Cornerstone of the Constitution.” Online, by God’s teeth, you can buy an “ORIGINAL 1215 Magna Carta British Library Baby Pacifier,” with the full Latin text, all thirty-five hundred or so words, on a silicone orthodontic nipple.

The reign of King John could not have been foreseen in 1169, when Henry II divided his lands among his surviving older sons: to Henry, his namesake and heir, he gave England, Normandy, and Anjou; to Richard, Aquitaine; to Geoffrey, Brittany. To his youngest son, he gave only a name: Lackland. In a new biography, “King John and the Road to Magna Carta” (Basic), Stephen Church suggests that the King might have been preparing his youngest son for the life of a scholar. In 1179, he placed him under the tutelage of Ranulf de Glanville, who wrote or oversaw one of the first commentaries on English law, “Treatise on the Laws and Customs of the Realm of England.”

“English laws are unwritten,” the treatise explained, and it is “utterly impossible for the laws and rules of the realm to be reduced to writing.” All the same, Glanville argued, custom and precedent together constitute a knowable common law, a delicate handling of what, during the reign of Henry II, had become a vexing question: Can a law be a law if it’s not written down? Glanville’s answer was yes, but that led to another question: If the law isn’t written down, and even if it is, by what argument or force can a king be constrained to obey it?

Meanwhile, the sons of Henry II were toppled, one by one. John’s brother Henry, the so-called Young King, died in 1183. John became a knight and went on an expedition in Ireland. Some of his troops deserted him. He acquired a new name: John Softsword. After his brother Geoffrey died, in 1186, John allied with Richard against their father. In 1189, John married his cousin Isabella of Gloucester. (When she had no children, he had their marriage ended, locked her in his castle, and then sold her.) Upon the death of Henry II, Richard, the lionhearted, became king, went on crusade, and was thrown into prison in Germany on his way home, whereupon John, allying with Philip Augustus of France, attempted a rebellion against him, but Richard both fended it off and forgave him. “He is a mere boy,” he said. (John was almost thirty.) And lo, in 1199, after Richard’s death by crossbow, John, no longer lacking in land or soft of sword, was crowned king of England.

Many times he went to battle. He lost more castles than he gained. He lost Anjou, and much of Aquitaine. He lost Normandy. In 1200, he married another Isabella, who may have been eight or nine; he referred to her as a “thing.” He also had a passel of illegitimate children, and allegedly tried to rape the daughter of one of his barons (the first was common, the second not), although, as Church reminds readers, not all reports about John ought to be believed, since nearly all the historians who chronicled his reign hated him. Bearing that in mind, he is nevertheless known to have levied steep taxes, higher than any king ever had before, and to have carried so much coin outside his realm and then kept so much coin in his castle treasuries that it was difficult for anyone to pay him with money. When his noblemen fell into his debt, he took their sons hostage. He had a noblewoman and her son starved to death in a dungeon. It is said that he had one of his clerks crushed to death, on suspicion of disloyalty. He opposed the election of the new Archbishop of Canterbury. For this, he was eventually excommunicated by the Pope. He began planning to retake Normandy only to face a rebellion in Wales and invasion from France. Cannily, he surrendered England and Ireland to the Pope, by way of regaining his favor, and then pledged to go on crusade, for the same reason. In May of 1215, barons rebelling against the King’s tyrannical rule captured London. That spring, he agreed to meet with them to negotiate a peace. They met at Runnymede, a meadow by the Thames.

The barons presented the King with a number of demands, the Articles of the Barons, which included, as Article 29, this provision: “The body of a free man is not to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any way ruined, nor is the king to go against him or send forcibly against him, except by judgment of his peers or by the law of the land.” John’s reply: “Why do not the barons, with these unjust exactions, ask my kingdom?” But in June, 1215, the King, his royal back against the wall, affixed his beeswax seal to a treaty, or charter, written by his scribes in iron-gall ink on a single sheet of parchment. Under the terms of the charter, the King, his plural self, granted “to all the free men of our kingdom, for us and our heirs in perpetuity” certain “written liberties, to be had and held by them and their heirs by us and our heirs.” (Essentially, a “free man” was a nobleman.) One of those liberties is the one that had been demanded by the barons in Article 29: “No free man is to be arrested, or imprisoned . . . save by the lawful judgment of his peers or by the law of the land.”

Magna Carta is very old, but even when it was written it was not especially new. Kings have insisted on their right to rule, in writing, at least since the sixth century B.C., as Nicholas Vincent points out in “Magna Carta: A Very Short Introduction” (Oxford). Vincent, a professor of medieval history at the University of East Anglia, is also the editor of and chief contributor to a new collection of illustrated essays, “Magna Carta: The Foundation of Freedom, 1215-2015” (Third Millennium). The practice of kings swearing coronation oaths in which they bound themselves to the administration of justice began in 877, in France. Magna Carta borrows from many earlier agreements; most of its ideas, including many of its particular provisions, are centuries old, as David Carpenter, a professor of medieval history at King’s College, London, explains in “Magna Carta” (Penguin Classics), an invaluable new commentary that answers, but does not supplant, the remarkable and authoritative commentary by J. C. Holt, who died last year. In eleventh-century Germany, for instance, King Conrad II promised his knights that he wouldn’t take their lands “save according to the constitution of our ancestors and the judgment of their peers.” In 1100, after his coronation, Henry I, the son of William the Conqueror, issued a decree known as the Charter of Liberties, in which he promised to “abolish all the evil customs by which the Kingdom of England has been unjustly oppressed,” a list of customs that appear, all over again, in Magna Carta. The Charter of Liberties hardly stopped either Henry I or his successors from plundering the realm, butchering their enemies, subjugating the Church, and flouting the laws. But it did chronicle complaints that made their way into the Articles of the Barons a century later. Meanwhile, Henry II and his sons demanded that their subjects obey, and promised that they were protected by the law of the land, which, as Glanville had established, was unwritten. “We do not wish that you should be treated henceforth save by law and judgment, nor that anyone shall take anything from you by will,” King John proclaimed. As Carpenter writes, “Essentially, what happened in 1215 was that the kingdom turned around and told the king to obey his own rules.”

King John affixed his seal to the charter in June, 1215. In fact, he affixed his seal to many charters (there is no original), so that they could be distributed and made known. But then, in July, he appealed to the Pope, asking him to annul it. In a papal bull issued in August, the Pope declared the charter “null, and void of all validity forever.” King John’s realm quickly descended into civil war. The King died in October, 1216. He was buried in Worcester, in part because, as Church writes, “so much of his kingdom was in enemy hands.” Before his death, he had named his nine-year-old son, Henry, heir to the throne. In an attempt to end the war, the regent who ruled during Henry’s minority restored much of the charter issued at Runnymede, in the first of many revisions. In 1217, provisions having to do with the woods were separated into “the charters of the forests”; by 1225, what was left—nearly a third of the 1215 charter had been cut or revised—had become known as Magna Carta. It granted liberties not to free men but to everyone, free and unfree. It also divided its provisions into chapters. It entered the statute books in 1297, and was first publicly proclaimed in English in 1300.

“Did Magna Carta make a difference?” Carpenter asks. Most people, apparently, knew about it. In 1300, even peasants complaining against the lord’s bailiff in Essex cited it. But did it work? There’s debate on this point, but Carpenter comes down mostly on the side of the charter’s inadequacy, unenforceability, and irrelevance. It was confirmed nearly fifty times, but only because it was hardly ever honored. An English translation, a rather bad one, was printed for the first time in 1534, by which time Magna Carta was little more than a curiosity.

Then, strangely, in the seventeenth century Magna Carta became a rallying cry during a parliamentary struggle against arbitrary power, even though by then the various versions of the charter had become hopelessly muddled and its history obscured. Many colonial American charters were influenced by Magna Carta, partly because citing it was a way to drum up settlers. Edward Coke, the person most responsible for reviving interest in Magna Carta in England, described it as his country’s “ancient constitution.” He was rumored to be writing a book about Magna Carta; Charles I forbade its publication. Eventually, the House of Commons ordered the publication of Coke’s work. (That Oliver Cromwell supposedly called it “Magna Farta” might well be, understandably, the single thing about Magna Carta that most Americans remember from their high-school history class. While we’re at it, he also called the Petition of Right the “Petition of Shite.”) American lawyers see Magna Carta through Coke’s spectacles, as the legal scholar Roscoe Pound once pointed out. Nevertheless, Magna Carta’s significance during the founding of the American colonies is almost always wildly overstated. As cherished and important as Magna Carta became, it didn’t cross the Atlantic in “the hip pocket of Captain John Smith,” as the legal historian A. E. Dick Howard once put it. Claiming a French-speaking king’s short-lived promise to his noblemen as the foundation of English liberty and, later, of American democracy, took a lot of work.

“On the 15th of this month, anno 1215, was Magna Charta sign’d by King John, for declaring and establishing English Liberty,” Benjamin Franklin wrote in “Poor Richard’s Almanack,” in 1749, on the page for June, urging his readers to remember it, and mark the day.

Magna Carta was revived in seventeenth-century England and celebrated in eighteenth-century America because of the specific authority it wielded as an artifact—the historical document as an instrument of political protest—but, as Vincent points out, “the fact that Magna Carta itself had undergone a series of transformations between 1215 and 1225 was, to say the least, inconvenient to any argument that the constitution was of its nature unchanging and unalterable.”

The myth that Magna Carta had essentially been written in stone was forged in the colonies. By the seventeen-sixties, colonists opposed to taxes levied by Parliament in the wake of the Seven Years’ War began citing Magna Carta as the authority for their argument, mainly because it was more ancient than any arrangement between a particular colony and a particular king or a particular legislature. In 1766, when Franklin was brought to the House of Commons to explain the colonists’ refusal to pay the stamp tax, he was asked, “How then could the assembly of Pennsylvania assert, that laying a tax on them by the stamp-act was an infringement of their rights?” It was true, Franklin admitted, that there was nothing specifically to that effect in the colony’s charter. He cited, instead, their understanding of “the common rights of Englishmen, as declared by Magna Charta.”

In 1770, when the Massachusetts House of Representatives sent instructions to Franklin, acting as its envoy in Great Britain, he was told to advance the claim that taxes levied by Parliament “were designed to exclude us from the least Share in that Clause of Magna Charta, which has for many Centuries been the noblest Bulwark of the English Liberties, and which cannot be too often repeated. ‘No Freeman shall be taken, or imprisoned, or deprived of his Freehold or Liberties or free Customs, or be outlaw’d or exiled or any otherwise destroyed nor will we pass upon him nor condemn him but by the Judgment of his Peers or the Law of the Land.’ ” The Sons of Liberty imagined themselves the heirs of the barons, despite the fact that the charter enshrines not liberties granted by the King to certain noblemen but liberties granted to all men by nature.

In 1775, Massachusetts adopted a new seal, which pictured a man holding a sword in one hand and Magna Carta in the other. In 1776, Thomas Paine argued that “the charter which secures this freedom in England, was formed, not in the senate, but in the field; and insisted on by the people, not granted by the crown.” In “Common Sense,” he urged Americans to write their own Magna Carta.

Magna Carta’s unusual legacy in the United States is a matter of political history. But it also has to do with the difference between written and unwritten laws, and between promises and rights. At the Constitutional Convention, Magna Carta was barely mentioned, and only in passing. Invoked in a struggle against the King as a means of protesting his power as arbitrary, Magna Carta seemed irrelevant once independence had been declared: the United States had no king in need of restraining. Toward the end of the Constitutional Convention, when George Mason, of Virginia, raised the question of whether the new frame of government ought to include a declaration or a Bill of Rights, the idea was quickly squashed, as Carol Berkin recounts in her new short history, “The Bill of Rights: The Fight to Secure America’s Liberties” (Simon & Schuster). In Federalist No. 84, urging the ratification of the Constitution, Alexander Hamilton explained that a Bill of Rights was a good thing to have, as a defense against a monarch, but that it was altogether unnecessary in a republic. “Bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince,” Hamilton explained:

Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “We, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

http://en.wikipedia.org/wiki/United_States_Constitution

http://en.wikipedia.org/wiki/United_States_Bill_of_Rights

Madison eventually decided in favor of a Bill of Rights for two reasons, Berkin argues. First, the Constitution would not have been ratified without the concession to Anti-Federalists that the adopting of a Bill of Rights represented. Second, Madison came to believe that, while a Bill of Rights wasn’t necessary to abridge the powers of a government that was itself the manifestation of popular sovereignty, it might be useful in checking the tyranny of a political majority against a minority. “Wherever the real power in a Government lies, there is the danger of oppression,” Madison wrote to Jefferson in 1788. “In our Governments the real power lies in the majority of the Community, and the invasion of private rights is cheifly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.”

The Bill of Rights drafted by Madison and ultimately adopted as twenty-seven provisions bundled into ten amendments to the Constitution does not, on the whole, have much to do with King John. Only four of the Bill of Rights’ twenty-seven provisions, according to the political scientist Donald S. Lutz, can be traced to Magna Carta. Madison himself complained that, as for “trial by jury, freedom of the press, or liberty of conscience . . . Magna Charta does not contain any one provision for the security of those rights.” Instead, the provisions of the Bill of Rights derive largely from bills of rights adopted by the states between 1776 and 1787, which themselves derive from charters of liberties adopted by the colonies, including the Massachusetts Body of Liberties, in 1641, documents in which the colonists stated their fundamental political principles and created their own political order. The Bill of Rights, a set of amendments to the Constitution, is itself a revision. History is nothing so much as that act of emendation—amendment upon amendment upon amendment.

It would not be quite right to say that Magna Carta has withstood the ravages of time. It would be fairer to say that, like much else that is very old, it is on occasion taken out of the closet, dusted off, and put on display to answer a need. Such needs are generally political. They are very often profound.

Magna Carta's significance has often been overstated, its meaning distorted.
Credit The National Archives / The New York Times / Redux

In the United States in the nineteenth century, the myth of Magna Carta as a single, stable, unchanged document contributed to the veneration of the Constitution as unalterable, despite the fact that Paine, among many other Founders, believed a chief virtue of a written constitution lay in the ability to amend it. Between 1836 and 1943, sixteen American states incorporated the full text of Magna Carta into their statute books, and twenty-five more incorporated, in one form or another, a revision of the twenty-ninth Article of the Barons: “No person shall be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment was passed in 1868; it came to be interpreted as making the Bill of Rights apply to the states. In the past century, the due-process clause of the Fourteenth Amendment has been the subject of some of the most heated contests of constitutional interpretation in American history; it lies at the heart of, for instance, both Roe v. Wade and Lawrence v. Texas.

Meanwhile, Magna Carta became an American icon. In 1935, King John affixing his wax seal to the charter appeared on the door of the United States Supreme Court Building. During the Second World War, Magna Carta served as a symbol of the shared political values of the United States and the United Kingdom. In 1939, a Magna Carta owned by the Lincoln Cathedral was displayed in New York, at the World’s Fair, behind bulletproof glass, in a shrine built for the occasion, called Magna Carta Hall. As Winston Churchill was vigorously urging America’s entrance into the war, he contemplated offering it to the United States, as the “only really adequate gesture which it is in our power to make in return for the means to preserve our country.” It wasn’t his to give, and the request that the British Library send the Lincoln Cathedral one of its Magna Cartas, to replace the one he intended to give to the United States, was not well received. Instead, the cathedral’s Magna Carta was deposited in the Library of Congress—“in the safe hands of the barons and the commoners,” as F.D.R. joked in a letter to Archibald MacLeish, the Librarian of Congress—where it was displayed next to the Declaration of Independence and the Constitution, with which, once the war began, it was evacuated to Fort Knox. It was returned to the Lincoln Cathedral in 1946.

The first painting that Trumbull completed for the Rotunda shows the presentation of the Declaration of Independence in what is now called Independence Hall

Magna Carta was conscripted to fight in the human-rights movement, and in the Cold War, too. “This Universal Declaration of Human Rights . . . reflects the composite views of the many men and governments who have contributed to its formulation,” Eleanor Roosevelt said in 1948, urging its adoption in a speech at the United Nations—she had chaired the committee that drafted the declaration—but she insisted, too, on its particular genealogy: “This Universal Declaration of Human Rights may well become the international Magna Carta of all men everywhere.” (Its ninth article reads, “No one shall be subjected to arbitrary arrest, detention or exile.”) In 1957, the American Bar Association erected a memorial at Runnymede. In a speech given that day, the association’s past president argued that in the United States Magna Carta had at last been constitutionalized: “We sought in the written word a measure of certainty.”

Magna Carta cuts one way, and, then again, another. “Magna Carta decreed that no man would be imprisoned contrary to the law of the land,” Justice Kennedy wrote in the majority opinion in Boumediene v. Bush, in 2008, finding that the Guantánamo prisoner Lakhdar Boumediene and other detainees had been deprived of an ancient right. But on the eight-hundredth anniversary of the agreement made at Runnymede, one in every hundred and ten people in the United States is behind bars.

The rule of history is as old as the rule of law. Magna Carta has been sealed and nullified, revised and flouted, elevated and venerated. The past has a hold: writing is the casting of a line over the edge of time. But there are no certainties in history. There are only struggles for justice, and wars interrupted by peace. ♦

Source link for Archibald MacLeish's acceptance of

the Magna Carta into the Library of Congress

http://www.loc.gov/item/mff000141/

http://www.loc.gov/resource/mff.003004/?q=&sp=1&st=gallery

Poetry of Archibald MacLeish

Poetry Foundation - http://www.poetryfoundation.org/bio/archibald-macleish

Poem Hunter - http://www.poemhunter.com/archibald-macleish/poems/

Hypocrite Auteur

by Archibald MacLeish

mon semblable, mon frère

(1)
Our epoch takes a voluptuous satisfaction
In that perspective of the action
Which pictures us inhabiting the end
Of everything with death for only friend.

Not that we love death,
Not truly, not the fluttering breath,
The obscene shudder of the finished act—
What the doe feels when the ultimate fact
Tears at her bowels with its jaws.

Our taste is for the opulent pause
Before the end comes. If the end is certain
All of us are players at the final curtain:
All of us, silence for a time deferred,
Find time before us for one sad last word.
Victim, rebel, convert, stoic—
Every role but the heroic—
We turn our tragic faces to the stalls
To wince our moment till the curtain falls.

(2)
A world ends when its metaphor has died.

An age becomes an age, all else beside,
When sensuous poets in their pride invent
Emblems for the soul’s consent
That speak the meanings men will never know
But man-imagined images can show:
It perishes when those images, though seen,
No longer mean.

(3)
A world was ended when the womb
Where girl held God became the tomb
Where God lies buried in a man:
Botticelli’s image neither speaks nor can
To our kind. His star-guided stranger
Teaches no longer, by the child, the manger,
The meaning of the beckoning skies.

Sophocles, when his reverent actors rise
To play the king with bleeding eyes,
No longer shows us on the stage advance
God’s purpose in the terrible fatality of chance.

No woman living, when the girl and swan
Embrace in verses, feels upon
Her breast the awful thunder of that breast
Where God, made beast, is by the blood confessed.

Empty as conch shell by the waters cast
The metaphor still sounds but cannot tell,
And we, like parasite crabs, put on the shell
And drag it at the sea’s edge up and down.

This is the destiny we say we own.

(4)
But are we sure
The age that dies upon its metaphor
Among these Roman heads, these mediaeval towers,
Is ours?—
Or ours the ending of that story?
The meanings in a man that quarry
Images from blinded eyes
And white birds and the turning skies
To make a world of were not spent with these
Abandoned presences.

The journey of our history has not ceased:
Earth turns us still toward the rising east,
The metaphor still struggles in the stone,
The allegory of the flesh and bone
Still stares into the summer grass
That is its glass,
The ignorant blood
Still knocks at silence to be understood.

Poets, deserted by the world before,
Turn round into the actual air:
Invent the age! Invent the metaphor!

The Imcompatibility of the 1996 Defense of Marriage Act with the U.S. Constitution

March 8, 2013

 

Why Bill Clinton Signed the Defense of Marriage Act

 

Posted by Richard Socarides

 



Bill Clinton shakes hands with members of gay-rights groups after a speech in 1992. Douglas C. Pizac/AP.



It is extremely rare for former Presidents to admit mistakes made in office, and rarer still for one to disavow a major piece of legislation. That’s partly why Bill Clinton’s op-ed in the Washington Post calling the 1996 Defense of Marriage Act—a law that he signed—“incompatible with our Constitution,” and asking the Supreme Court to overturn it, is so important.

 

The essay, a Clinton associate told me, was Clinton’s own idea; he wrote it out himself in longhand on a legal pad. As his former White House adviser on gay-rights, I was not surprised by the message. But Clinton’s willingness, just twenty days before two gay-rights cases go to the Supreme Court, to publicly call DOMA discriminatory is a big step, even if his comments stopped short of the full apology some have asked for.

 

But the op-ed leaves a political mystery intact. Clinton, though clearly unhappy with the law today, does not really explain why he signed it, other than to say “it was a very different time.” Perhaps that is explanation enough. Still, how was it that Bill Clinton, the first President to champion gay rights, put his name on one of the most discriminatory anti-gay statutes in American history?

 

The simple answer is that he got boxed in by his political opponents, and that his campaign positions on gay rights ran ahead of public opinion. But there was another important factor: a failure to imagine how quickly gay rights would evolve, and how difficult it would be to undo the damage that DOMA did.

 

When Bill Clinton first ran for President over twenty years ago, he was the first candidate for national office to seek and receive support from an organized gay political community, which was itself new to Presidential politics. In 1992, after twelve years of Republican control of the White House, the federal government had neglected funding the battle against the quickly burgeoning AIDS epidemic. Clinton was sympathetic; because of his interest in civil rights generally, and long friendships with gay and AIDS activists, he was then one of the national politicians most conversant on gay-equality issues.

 

During that campaign, in May of 1992, as governor of Arkansas, Clinton spoke at the first large-scale Presidential campaign event for gay and lesbian supporters, in West Hollywood, California. He gave an emotional speech largely focussed on the AIDS crisis, in which he spoke of the moral costs to the country of ignoring those suffering from the disease. Gay men with AIDS had been dying at a stunningly rapid rate. Their families, friends, and caretakers had, in many cases, shunned them, and so had national leaders. In contrast, Clinton said, “I want to give you my thanks for that struggle…,” and concluded, “I have a vision and you’re a part of it. I believe we’re all a part of the same community and we’d better start behaving as if we are.”

 

Clinton won the enthusiastic support of gays and lesbians in the 1992 election. For the first time, contributions from gay Americans factored significantly in campaign fundraising. Gays and lesbians finally had a President who included them rhetorically in the national policy debate.

 

But soon after Clinton took office, in 1993, it was apparent that his tenure was off to a rocky beginning. The early days of the Administration were marred by opposition within the military and the Democratic Party itself to Clinton’s idea of gays and lesbians serving openly in the uniformed armed forces. The White House was unprepared to shepherd a major social-policy change through Congress. The Senate Armed Services Committee chairman, Sam Nunn, a Democrat from Georgia, led opposition to Clinton’s gay-rights policy, working behind the scenes with General Colin Powell, who was a Bush-holdover as Chairman of the Joint Chiefs of Staff. The so-called Don’t Ask Don’t Tell compromise was born: gays and lesbians would be allowed to serve so long as they kept their sexual orientation secret. Gay-rights advocates were outraged that Clinton had agreed to a bad compromise, but at this point, in the spring of 1993, it was clear that the President was going to lose this battle. (Don’t Ask Don’t Tell, in fact, turned out to be a policy and personnel disaster.)

 

After what was regarded as a fiasco on gays in the military, the Administration entered a phase of deep reluctance to tackle substantive gay-rights issues on the national stage. Although Clinton made a number of first-ever, high-profile appointments of gay leaders to his team (I was one of the minor ones), any kind of gay-rights policy agenda seemed stalled as a result of the Don’t Ask Don’t Tell hangover.

 

As Republicans prepared for the 1996 Presidential election, they came up with what they thought was an extremely clever strategy. A gay-rights lawsuit in Hawaii was gaining press coverage as an initial series of preliminary court rulings suggested that gay marriage might be legally conceivable there. Clinton was on the record opposing marriage equality. But Republicans in Congress believed that he would still veto legislation banning federal recognition of otherwise valid same-sex marriages, giving them a campaign issue: the defense of marriage.

 

What Republicans had not counted on, though, was just how adverse the Administration had become, especially in an election year, to getting ahead of public opinion on gay rights after having had to backtrack on open military service.

 

On May 23, 1996, as DOMA began its rapid journey through Congress, the New York Times reported:

George Stephanopoulos, a senior Presidential adviser who has overseen the issue, said: “It’s wrong for people to use this issue to demonize gays and lesbians and it’s pretty clear that that was the intent in trying to create a buzz on this issue. But the fact remains that if the legislation is in accord with the President’s stated position, he would have no choice but to sign it.

That was a bit of a bombshell, but it laid an intentional marker. The columnist Frank Rich, then writing for the Times, wrote that, “The bill also forces Mr. Clinton, who says he opposes both same-sex marriage and anti-gay discrimination, into a corner…. He’s presumably praying it will never reach his desk.”

 

Inside the White House, there was a genuine belief that if the President vetoed the Defense of Marriage Act, his reëlection could be in jeopardy. There was a heated debate about whether this was a realistic assessment, but it became clear that the President’s chief political advisers were not willing to take any chances. Some in the White House pointed out that DOMA, once enacted, would have no immediate practical effect on anyone—there were no state-sanctioned same-sex marriages then for the federal government to ignore. I remember a Presidential adviser saying that he was not about to risk a second term on a veto, however noble, that wouldn’t change a single thing nor make a single person’s life better.

 

What we didn’t fully comprehend was that, sooner than anyone imagined, there would be thousands of families who would be harmed by DOMA—denied federal benefits, recognition, and security, or kept apart by immigration laws.

 

During the campaign season, Clinton would sometimes complain publicly about how the Republicans were using the marriage issue against him. He said, derisively, that it was “hardly a problem that is sweeping the country” and his press secretary called it “gay baiting, pure and simple.” And that September, when the Defense of Marriage Act was passed, President Clinton signed it.

 

There are no pictures of this occasion—no pens that were saved. My advice to the people who arranged for these things was to get it done and out of the way as quickly as possible; he signed it late at night one evening after returning from a day-long campaign trip.

 

The Defense of Marriage Act became law, and President Clinton was reëlected, again with overwhelming support from gay Americans. He was enthusiastically endorsed by the nation’s leading gay political group, the Human Rights Campaign, which had urged him to veto the legislation. They had called DOMA“a Bob Dole for President publicity stunt.” (There was a small dustup during the later stages of the campaign when a Clinton-related committee ran a radio ad in the South, heralding the enactment of the legislation. The ad was quickly pulled.)

 

Was it realistic to think that a Presidential veto of DOMA would have put Clinton’s reëlection in jeopardy? At the time I thought not. But in 1996 less than thirty per cent of Americans supported gay marriage, and even eight years after that, in 2004, President George W. Bush used gay marriage extremely effectively as a wedge issue against John Kerry, who at the time only supported civil unions. In fact, many believe that it was the Bush campaign’s very strategic placement of anti-gay-marriage state constitutional ballot initiatives throughout moderate and conservative leaning states (like Ohio) which brought out conservative Bush voters and carried the day for him in that election. Could similar tactics have been used with the same effectiveness in 1996? Obviously, we will never know.

 

Had there been a President Dole, none of the advances President Clinton accomplished in his second term for gay equality would have been possible. Funding for H.I.V. and AIDS would have no doubt been cut. A DOMA veto would likely have been overridden anyway, and so even if President Clinton had been reëlected, we would still have had the Defense of Marriage Act.

 

After his reëlection, President Clinton became considerably bolder on gay-rights issues. He became the first President in history to endorse gay-rights legislation by announcing his support for a new federal hate-crimes statute that included sexual orientation. He supported legislation banning employment discrimination against gays. He continued, and even stepped up, appointments of openly gay Americans to important Administration positions, including the recess appointment of James Hormel as the first openly gay Ambassador. He signed an executive order banning sexual-orientation discrimination in the federal civilian workforce, leading the way for much of corporate America to follow.

 

A decade later, in 2009, when Clinton finally endorsed same-sex marriage, he commented, in an interview with Anderson Cooper, “So I said, you know, I realized that I was over sixty years old, I grew up at a different time, and I was hung up about the word. I had all these gay friends, I had all these gay couple friends, and I was hung up about it. And I decided I was wrong…. I had an untenable position.”

 

What are the lessons of the Defense of Marriage Act? Perhaps the clearest one is that if you compromise on principle, on the assumption that the world will never catch up with your ideals, you will likely come to regret it. Marriage equality was not some completely far-off vision; it was something that could be achieved. Clinton never believed that the federal government had the right to discriminate. The harder question is this: When is winning the most important thing? Would a veto, in retrospect, have been worth the risk?

 

Richard Socarides is an attorney, political strategist, writer, and longtime gay-rights advocate. He served as White House Special Assistant and Senior Adviser during the Clinton Administration.

 

 

 

The State of the Catholic Church, circa 2013

 

 

February 12, 2013

 

The Disastrous Influence of Pope Benedict XVI

http://www.newyorker.com/online/blogs/johncassidy/2013/02/good-riddance-to-pope-benedict-he-was-a-disaster.html?mbid=nl_Daily%20(179)

 

Posted by John Cassidy

 

Spare me any more reverential coverage about Pope Benedict XVI and his decision to give up his office. On a personal level, I wish him well. At the age of eighty-five and increasingly infirm, he surely deserves a rest. But as far as his record goes, he can’t leave office a moment too soon. His lengthy tenure at the Vatican, which included more than twenty years as the Catholic Church’s chief theological enforcer before he became Pope, in 2005, has been little short of disastrous. By setting its face against the modern world in general, and by dragging its feet in response to one of the worst scandals since the Reformation, Benedict’s Vatican has called the Church’s future into question, needlessly alienating countless people around the world who were brought up in its teachings.

 

Not that it matters much, but you can count me among them. When I was a boy, in Leeds, West Yorkshire, the nuns at Sacred Heart Primary School taught my classmates and me the New Testament from slim paperbacks with embossed navy-blue covers. We each got four of them: “The Good News According to Luke,” The Good News According to Matthew,” “The Good News According to Mark,” and “The Good News According to John.” Of the four gospels, the most thumbed, by far, were those of Luke, which contains many of Jesus’s parables, and Matthew, which features the Sermon on the Mount: “Blessed are the poor in spirit, for theirs is the kingdom of heaven. Blessed are those who mourn, for they will be comforted. Blessed are the meek, for they will inherit the earth…”

 

It was the early seventies, an era of hope and optimism for many Catholics. Following the lengthy Second Vatican Council, called by Pope John XXIII in 1959, the Church had made a determined effort to modernize some of its doctrines and practices. Masses, which for many centuries had been confined to Latin, were now celebrated in other languages. Priests, who traditionally faced the altar during services, had been instructed to face their congregations and invite them to participate. In place of a stultifying focus on ancient dogmas and ceremonies, there was a return to the actual teachings of Jesus, which were being interpreted in increasingly liberal and egalitarian ways, as evidenced by the words of a popular folk hymn we used to sing, a few lines of which I recount from memory:

He sent me to give the Good News to the poor.
Tell prisoners that they are prisoners no more.
Tell blind people that they can see,
And set the downtrodden free.

I didn’t know it at the time, but the church’s concern with bread-and-butter issues had been expressed from the top. In 1967, Pope Paul VI, John XXIII’s successor, issued “Populorum Progressio,” an encyclical on “the development of peoples,” which asserted that the global economy should serve the many, not just the few. Updating the Church’s teachings to take account of widespread poverty and inequality, the Pontiff recognized the right to a just wage, security of employment, and decent working conditions. He even recognized the right to join a union.

 

Not everybody shared the vision of Catholicism as an urgent and uplifting force for social justice, though many people in South America and other developing areas of the world did. (In some places, it became known as “liberation theology,” a phrase coined by the Peruvian priest Gustavo Gutierrez.) Many older priests, including the venerable Canon Flynn, who oversaw my local church, Our Lady of Lourdes, had little time for innovations. They were content to celebrate the sacraments as they always had, saying Mass every day, issuing the last rites to stricken parishioners, and doling out “three Our Fathers and three Hail Marys” to penitents, such as my young self, who came to confess their sins. But the energy and the future of the church appeared to rest with the modernizers.

 

This was despite the fact that Paul VI also reaffirmed many of the Vatican’s traditional teachings on social issues, such as extramarital sex, birth control, homosexuality, and enforced celibacy for priests and nuns. Paul was hardly a revolutionary. He wasn’t willing to challenge the harsh, self-denying ordinances that a series of Roman popes had foisted on Christianity during the Middle Ages. But in calling for peace and social justice, in reaching out to other faiths, in traveling extensively—he was known as “the Pilgrim Pope”—and in making some reforms at the Vatican, such as surrendering his tiara (the papal crown) and barring cardinals over the age of eighty from voting in papal elections, he seemed interested in reconciling the Church to modern reality.

 

With the arrival of Pope John Paul II, in 1979, all that started to change. In many ways, Karol Wojtyla was an admirable man: a part of the Polish resistance against the Nazis; a vocal opponent of wars and militarism (in 2003, he criticized the invasion of Iraq); a supporter of canceling debts in the developing world; and a massively charismatic leader. In theological and practical terms, though, he was a dreadful throwback. With the Cardinal Joseph Ratzinger, the future Benedict XVI, at his side, as the Vatican’s chief theologian, he set about unmaking much of the modernization project of the previous twenty years. He issued lengthy and emphatic rulings condemning abortion, birth control, and homosexuality. He dismissed calls for the relaxation of the celibacy rules for priests, and for the ordination of women. He criticized liberation theology and surrounded himself with dyed-in-the-wool conservatives like Ratzinger. Within the hierarchy of the Church, questioning traditional teachings, even gently, became a potential career-ender.

 

After John Paul died, in 2005, and Ratzinger took over, the conservative counter-offensive continued. Indeed, it intensified. The Vatican eased restrictions on the Latin Mass and invited back into the Church some excommunicated members of the Society of Saint Pius X, an ultra-conservative group dedicated to reversing the Second Vatican Council. (One member of the group, an English bishop called Richard Williamson, turned out to be a Holocaust denier. Last year, belatedly, the Society expelled him.) In criticizing the “culture of relativism” in modern societies, and “the anarchic freedom that wrongly passes for true freedom,” Benedict made clear that he saw his primary mission not as extending and enlarging the Catholic Church but as purifying it, by which he didn’t just mean dealing with the child-abuse scandal. He meant casting off extraneous growths and getting the Church back to what he saw as its proper roots. If this process alienated some current and former members of the faith, so be it. Benedict said numerous times that the Church might well be healthier if it was smaller.

 

In a 2011 interview with the German newsmagazine Der Spiegel, Hans Küng, a dissident Swiss theologian who knew Pope Benedict when they were both young priests in Germany, made a telling comparison between him and Vladimir Putin, pointing out that the two leaders had inherited a series of democratic reforms they set out to reverse. Putin and Benedict both “placed their former associates in key positions and sidelined those they didn’t like,” Küng said. He added:

One could draw other parallels: the disempowerment of the Russian parliament and the Vatican Synod of Bishops, the degradation of Russian provincial governors and of Catholic bishops to make them nothing but recipients of orders; a conformist ‘nomenclature’; and a resistance to real reforms.… Under the German pope, a small, primarily Italian clique of yes-men, people with no sympathy for the calls to reform, were allowed to come into power. They are partly responsible for the stagnation that stifles every attempt at modernization of the church system.

The strategy of circling the wagons and seeking to defy the world was displayed, to terrible effect, in the Church’s reaction to the child-abuse scandal. As the Vatican official that John Paul II asked to deal with the crisis when it broke, Benedict was presented with extensive evidence that sexual abuse was widespread and tolerated by church authorities. But it wasn’t until many years later, when tremendous damage had already been done and many further crimes had been committed, that Benedict, as Pope, apologized for the acts of pedophiles in cassocks, adopted a zero-tolerance policy for the Church, and met with some of the victims. Even then, though, say some critics, he and his colleagues in the Vatican resisted efforts to find and punish the perpetrators.

 

“His record was terrible,” David Clohessy, executive director of the twelve-thousand-strong Survivors’ Network of those Abused by Priests, told The Guardian. “He knows more about clergy sex crimes and cover-ups than anyone else in the Church, yet he has done precious little to protect children.” From Ireland, where investigations are continuing into extensive abuse at church-run orphanages and schools, John Kelly, one of the founders of the country’s Survivors of Child Abuse group, said, “I’m afraid to say Pope Benedict won’t be missed, as the Vatican continued to block proper investigations into the abuse scandals during his term in office.… For us, he broke his word.”

 

As a result of the sex scandals and the Vatican’s futile attempt to turn back the clock, Pope Benedict’s Church is in increasingly perilous shape. Throughout much of the developed world, the number of people attending services is declining steadily, and yet there is a tremendous shortage of priests. In places like Ireland and Benedict’s own Germany, young people are deserting the Church in droves. Even in developing countries like Brazil, the Church is facing challenges from other creeds.

 

Of course, in a religion of more than a billion, there are some bright spots and some inspiring individuals. When I went home to Leeds not so long ago, I found that an enthusiastic young Polish priest had taken over my childhood church and was trying to save it from closure. To do some good, and raise some money, he was planning to turn the rectory into a halfway house for young offenders. Listening to him celebrating Mass like a man possessed, I was reminded of the Catholicism of the Sermon on the Mount and of St. Francis of Assisi—the Catholicism that the nuns had tried to drill into me decades before.

 

In Rome, however, the conservative theologians and placeholders are still running the show. Sadly, that is likely to continue. “During [Benedict’s] time in office,” Küng noted, “he has ordained so many conservative cardinals, that amongst them is hardly a single person to be found who could lead the Church out of its multifaceted crisis.”

 

Photograph: Stefano Dal Pozzolo/Getty.

 

 

 

* * * * * * * * * * * * * * * * * * 

 

Addendum

 

 

 

Victims' complaint to the international criminal court accuses Pope Benedict and three others of failing to prevent abusers

 

Pope accused of crimes against humanity by victims of sex abuse

 

guardian.co.uk, Tuesday 13 September 2011 07.01 EDT

 

 

Pope Benedict XVI, who has been cited in a complaint to the international criminal court.

Photograph: Vincenzo Pinto/AFP/Getty Images

 

 

Victims of sexual abuse by Catholic priests have accused the pope, the Vatican secretary of state and two other high-ranking Holy See officials of crimes against humanity, in a formal complaint to the international criminal court (ICC).

 

The submission, lodged at The Hague on Tuesday, accuses the four men not only of failing to prevent or punish perpetrators of rape and sexual violence but also of engaging in the "systematic and widespread" practice of concealing sexual crimes around the world.

 

It includes individual cases of abuse where letters and documents between Vatican officials and others show a refusal to co-operate with law enforcement agencies seeking to pursue suspects, according to the Centre for Constitutional Rights (CCR), a US-based organisation that represents the claimants.

 

Pam Spees, human rights attorney with CCR, said: "The point of this is to look at it from a higher altitude. You zoom out and the practices are identical: whistleblowers are punished, the refusal of the Vatican to co-operate with law enforcement agencies. You see the protection of priests and leaving them in the ministry and because of these decisions other children are raped and sexually assaulted."

She said: "It's not only the facts of the abuse but the way that the church deepened the harm in sometimes irreparable ways."

 

According to the document filed by CCR, the pope, as head of the Catholic church, is ultimately responsible for the sexual abuse of children by priests and for the cover-ups of that abuse. The group argues that he and others have "direct and superior responsibility" for the crimes of those ranked below them, similar to a military chain of command.

 

The others named in the complaint are Angelo Sodano, dean of the College of Cardinals and former Vatican secretary of state; Cardinal Tarcissio Bertone, now secretary of state, who previously served at the Congregation for the Doctrine of the Faith (CDF), the organisation tasked with handling sexual abuse cases under the pope when he was Cardinal Ratzinger; and Cardinal William Lavada, head of the CDF, whose handling of previous sexual abuse cases has been criticised in the past.

 

Megan Petersen, from Minnesota, is one of two named US victims whose cases have been included in the complaint to the ICC. Petersen was awarded $750,000 (£500,000) last week in a civil claim against Crookston diocese, in which she alleged that a priest, Joseph Jeyapaul, had raped her repeatedly as a child.

 

Speaking at The Hague, where the complaint was being launched, Petersen said of Jeyapaul: "He was a man of God and I was very devout. I wanted to be a nun. I trusted him.

 

"Part of why I'm here is to protect kids. My perpetrator is still serving among kids and vulnerable adults, despite there being criminal charges against him. Ratzinger is the head of this organisation and these are his sheep, his flock. I will do everything in my power to make sure this does not happen to another child." Jeyapaul has denied the abuse from India, where he is serving as a priest.

 

Amnesty International's latest annual human rights report, which cited the Holy See for the first time, concluded there was widespread evidence of child sexual abuse by members of the clergy over past decades, and an "enduring failure" of the Catholic church to seek redress.