November 17, 2019

Vanity of vanities, saith the Preacher; all is vanity….                    Is there anything whereof it may be said, See this is new?          It hath been already of old time, which was before us.

– Ecclesiastes 1: 2, 10

“The Silly Season” is a term used for that time deep into the electoral cycle when candidates start slinging mud with brazen abandon. U.S. Senator Elizabeth Warren recently redefined “Silly Season” to embrace the entire 2020 New Hampshire Presidential Primary process when she called for a constitutional amendment to ensure that people have the right to vote.

It seemed to slip the mind of the former Harvard Law professor that there already is one. More than one, in fact.

Warren’s call for amending the Constitution was made while standing on a platform, speaking to between 40 and 50 Democrats who filled two small rooms at the Rockingham County Democratic Party Headquarters in Londonderry. It was a muggy Saturday night in early April, as spring was stirring back to life. The deadline with the tax man was looming, Also looming were the specters of other progressive presidential contenders, Bernie Sanders in particular.

It was Warren’s last night on a short campaign swing through New Hampshire.

She’s one of a score of political bears that had emerged from their hibernation dens, bearing Democrats’ hopes to retake the White House, on the prowl for the intoxicating honey that drives a politician’s life, a vote. On that April night, the senior senator from neighboring Massachusetts found herself pitching a three part political platform based on strengthening unions, taxing the rich and protecting democracy. 

“Part Three, we got to rewrite the rules to protect out democracy,” she said. “And let’s start with a constitutional amendment to protect the right of every American citizen to vote and to get that vote counted.”

Her evangelizing elicited huzzahs from some of the faithful. 

The call and response was akin to a preacher, preaching gospel to the faithful. She’d reminisced earlier about attending Donald Trump’s inauguration, despite it being a distasteful task. She came from a tradition of “witnessing” in her native Oklahoma, she said, justifying her presence among Trump’s not-record crowd.

That Saturday night, among the congregated in Rockingham County, I witnessed a presidential candidate displaying aspects of both Bible Belt Sunday School teacher and preacher. The Sunday School teacher instructs, while the preacher heralds the call to faith and duty.

Warren told the throng of her childhood dream to become a school teacher. She had lived the dream, and there was nothing better.

She spoke with great pride of having been a teacher to special needs kids, before moving on to law school. She shared the good news she’d served less than an hour in legal practice, after leaving law school, before becoming a teacher again. At law school.

Civil Rights Amendments

As a teacher, and a distinguished one at that, it is hard to believe that former Harvard Law School Professor Elizabeth Warren doesn’t know about the 15th Amendment, that states:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Apparently, constitutional law was an elective, not a required course for graduation at the University of Oklahoma Law School, Warren’s alma mater.

The 15th Amendment ensured the right to vote, when the franchise consisted of males over the age of 21. The franchise was expanded to women in 1920 upon ratification of the 19th Amendment, and to 18, 19 and 20-year olds when the 26th Amendment was ratified in 1971.

The guarantor of the right of everyone eligible to vote has been in the U.S. Constitution since the first U.S. Grant administration. The sesquicentennial of the 15th Amendment will be in 2020, the same year Warren hopes to win the presidency, the 100th anniversary of women receiving the vote.

Perhaps Elizabeth Warren skipped seeing Steven Spielberg’s movie starring Daniel Day Lewis as Lincoln, which came out in October 2012, during her first campaign for the U.S. Senate. She was very busy then, in her quest to defeat Scott Brown. It was a come-from-behind victory, Warren defying the polling numbers to surge ahead and beat the incumbent by seven points, as she recalled on a rainy night in Londonderry.

Spielberg’s movie dealt with Abraham Lincoln’s own quest to pass the 13th Amendment abolishing slavery, making his Emancipation Proclamation the rule of the law throughout the land. The 13th was the first of the three so-called “Reconstruction Amendments,” as the country had to be reconstructed after being torn apart by what the post-Civil War official history called “The War of the Rebellion.”

Written and ratified when abolitionist Radical Republicans still were a major power in Lincoln’s “Grand Old Party,” the Reconstruction Amendments endowed citizenship on African Americans, along with the right to vote for adult males and equal protection under the laws for all persons of color. Color then meant being of “African” origin. The Reconstruction Amendments could have been called the “Civil Rights Amendments.”

Because the “Rebel States” upon seceding from the United States had withdrawn their Senators and Representatives from Congress during the course of The Rebellion, the Republicans dominated the House and Senate. The Republicans controlled most state legislatures, including those in the military-occupied South.

The GOP’s huge majorities in Congress enabled them to pass civil rights acts in 1866, 1870 and 1875. It also passed three “Reconstruction Acts” in 1867 and 1868 to control the reintegration of the South into the Union. Enacted by overriding the vetoes of President Andrew Johnson, Lincoln’s racist successor who had Southern sympathies, the legislation spelled out the path Rebel States had to take before their representatives and senators were officially readmitted to Congress.

Passage of the 14th Amendment by the Rebel States was mandatory, for readmission.

The Key Amendment

The issue of protecting women’s reproductive rights was addressed by Elizabeth Warren in Londonderry, in response to a question from the audience. It’s the 14th Amendment that guarantees an American woman’s right to an abortion.

The 14th Amendment became the most important vehicle for promoting civil rights in the post-World War II era, and not just for African Americans. Moribund for decades, the Supreme Court under Chief Justice Earl Warren used it to incorporate the protections of the Bill of Rights to the states. Controversially, the 14th was used to ensure the rights of criminal defendants to a fair trial and to expand free speech rights.

When I was attending Boston University in the late 1970s, a dirty book store in the Combat Zone, Boston’s red light district, was called “The 14th Amendment.” The 14th Amendment made possible the revolution in pornography.

Even more controversially, the 14th Amendment was the engine propelling the civil rights train down the tracks of equality in the 1950s, ‘60s and ‘70s. The doctrine of one man, one vote enshrined by Baker v. Car (1962) was based on the 14th. The Civil Rights Act of 1964 and the Voting Rights Act of 1965, the most meaningful federal civil rights legislation since the Reconstruction period, were made effective via the 14th Amendment.

It was hated by conservatives, such as those put on the Supreme Court by Republican presidents elected in part due to the backlash against the liberal Warren Court. Skepticism of the 14th is a litmus test for conservative justices as much as Roe v. Wade is. The Roe decision is rooted in the right to privacy Warren Court justices found in the 14th.

The borked Supreme Court nominee Robert Bork hated the way the Warren Court used the 14th Amendment to expand the rights of groups and individuals. He didn’t make it onto the Court, but Antonin Scalia did. He hated the 14th too. Yet, he and other 14th Amendment haters on the High Court used it to deliver the presidency to the Republicans in Bush v. Gore (2000). The 14th was used to prevent the violation of the civil rights of George W. Bush, individual, and the voters in Rebel State Florida, as a group.

The 14th is the guarantor of the guarantees of the 15th. There is no way for Elizabeth Warren not to know this. She was a professor at Harvard Law, one of the most prestigious law schools in the world.

As Warren said to the Londonderry Democrats, her law school specialty was corporations, corporate law and finance. The 14th Amendment to the Constitution was used to incorporate civil rights to corporations, under the legal fiction that they are people.

The great irony of the 14th was that, in the 90-odd years after The Rebellion, the Supreme Court let this critical Civil War/Civil Rights amendment become moribund in the way it was meant it to be applied to African Americans, while using it to bolster the rights of corporations. When it came to the rights of colored people, High Court decisions undermined the equality of African Americans, real people who suffered and bled and died. Supreme Court justices wielded the 14th as a shield to protect fictional persons, the corporations, from government interference.

The Supremes ruled that while the original intent of Congress was to protect citizens of “African origin,” the sentiment for protecting due process rights was universal. Thus, the 14th did not just apply to people of African Americans. It covered every person, real and fictional.

As America progressed towards the 20th Century, Supreme Court decisions on the 14th veered farther and farther away from the intent of those who created it.

In Plessy v. Ferguson (1896), the original intent was recognized (“The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law….) and then jettisoned (“…it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the races upon terms unsatisfactory to either”). Racial segregation was enshrined as constitutional law, until the Warren Court overturned it in Brown v. Board of Education (1954) and other rulings.

Elizabeth Warren claims kinship to Native Americans, a protected group in terms of anti-discrimination law. “Indians” were not considered to be covered by the 14th Amendment until they were made citizens of the United States in 1924, when Congress passed the Indian Citizenship Act.

The Supremes further fiddled with the 14th during the Progressive Era to protect corporations from government interference, as cities and states took action against appalling working conditions.

An amendment designed to ensure the freedom of former slaves and free blacks essentially evolved into a license permitting governments to disenfranchise and allow the exploitation and even murder of black folk, while forbidding the duly elected representatives of the people from regulating companies to protect the health and safety of workers, or provide them with fair wages.

An amendment to ensure the equality of real people wound up giving a whip hand over real people and the real people of their elected governments to the fictional people known as corporations.

Even now, the 14th Amendment affects corporate and contract law, which Elizabeth Warren told the Londonderry Dems was her specialty. So why is Elizabeth Warren calling for a constitutional amendment to ensure the right of everybody to vote when it’s been in the Constitution all along?

Teachers of Children

O chestnut tree, great rooted blossomer,                                            Are you the leaf, the blossom or the bole?                                          O body swayed to music, O brightening glance,                          How can we know the dancer from the dance?

– W.B Yeats, “Among School Children”

There’s a dynamic between teachers and students. Students are always inferior to teachers, as when you no longer need a teacher, you are no longer a student.

The Rockingham Democrat who introduced Elizabeth Warren Saturday night told a story about a campaign worker who would not get his last credit to graduate, as that ensured he would always be able to go back to Harvard to hear Warren lecture. Hearing this story, Warren laughed while moving through the room to the platform from which she would speak. I took a note to myself, “Bull……”

One doesn’t work their a$$ off to get into the most competitive law school, aside from Yale with its much smaller class, for the privilege of spending a Trump-sized pot of money for the privilege of working your a$$ for another three years not to graduate. A Harvard Law degree is a ticket to unlimited earnings power, which is a major factor in going to Harvard in the first place, if just to pay off your student loans.

This was story time. Teachers of children tell stories to children.

Civics courses in the 1960s were made up of safe stories about American history told to school children. We were never told anything harsh or challenging, we were told stories that everybody agreed on, that made American history seem a march of progress.

The civics books told stories about America as the New Jerusalem, an enlightened democracy characterized by the American Way of fair play. Superman’s America. Those civics stories didn’t jibe with pictures of police riots against black women and children in Selma, Alabama and the carnage of Vietnam televised nightly on The Tube.

The dynamic on display in Londonderry was a teacher of children telling stories to school children. Everyone was reading from the same civics book. Everyone was on the same page.

Elizabeth Warren’s own true story is one for an old-fashioned civics book. Her personal story of coming up from the genteel poverty of the lower working class to become one of the most respected professors in the field of corporate law and winning a hard fought contest to become a U.S. Senator is truly amazing. That Elizabeth Warren embodies the American Dream.

I wrote about Warren during her 2012 campaign. I was smitten with her then, so much so that in 2016, I created a “Write-In Elizabeth Warren for President” Facebook page.

I marveled at how wonderful Warren was in person, and how different she was from her media personality. She struck me as having a slightly goofy personality, like the great 1930s screwball comedienne Carole Lombard, or Katharine Hepburn in Bringing Up Baby. (For those of you who don’t know screwball comedy, it’s the woman who’s always right, no matter how absurd the situation, and running against Scott Brown had many aspects of absurdity.)

She was a teacher then, too. I felt she came across in her TV appearances and in her TV ads like the great teacher you had heard about when you were a college freshman. Someone with an august title like “University Professor,“ about whom upper classmen told stories. A real academic superstar.

It was part of the legend that the University Professor’s class was super hard to get into. A real challenge, like the great challenges of life that you’d face from now on, in college, in graduate school, in life. Getting in, let alone flourishing, was a mark of success.

You wanted to get in to the class, and you didn’t. You yearned to be her student, but you were afraid. One look or cutting remark, and you’d s— your pants. And think about the final! How could you measure up when pitting yourself against genius?

During the 2012 Senate campaign, I thought how great it would be if she could get her “real” personality across, as I perceived it. The personality I saw when she was on the hustings, such as when she made a campaign appearance with one of my heroes, U.S. Senator Max Cleland.

After Londonderry, I don’t know what Elizabeth Warren’s real personality is. I was thinking, while sitting as one of the audience, “Relax. You need to relax.”

I was trying to will her to relax. Warren was coming across as strident as her appearance stretched towards the one-hour mark. It seemed more like two.

When it came to socio-economic issues before the “AOC Wave,” that tsunami created by the shock of Donald Trump that lifted the Democratic Party off its feet and deposited in Bernieland, I felt closer to her than any other candidate.

In Londonderry last Saturday night, Liz Warren was doing Bernie Sanders. And I thought, Bernie does it so much better.

The persona of Elizabeth Warren the fear-inducing University Professor came across the airwaves in her first Senate campaign, seven years ago. In 2019, she’s using a narrative strategy about teaching schoolchildren rather than law school students, but she really is the great University Professor.

She knows more than we do. Feel-good stories about teaching kids in public school won’t hide the real Elizabeth Warren. She’s brilliant. She knows her stuff. And she can be strident, because of her surety in her own intellect that got her so far.

So, why then – why this ridiculous rhetoric of the need for a superfluous constitutional amendment?

And why, when speaking of the need for bipartisanship on the environment, as AOC’s red hot Green New Deal has been incorporated into her campaign spiel, did she tell Londonderry Democrats a story? It was a story, set in a time not so long ago, when Republicans and Democrats agreed on the environment, such as the need for higher fuel efficiency standards for motor vehicles.

In fact, John Kerry, alongside whom she served in the Senate, was brutally attacked by Republicans when he argued for boosting fuel efficiency during the George W. Bush years. During a floor debate, Kerry memorably backed down when Republicans charged him with being un-American, on the grounds that he wanted to deny Americans their right of free choice to buy any vehicle they wanted, including big gas guzzlers.

That was the reality in the U.S. Senate nearly a generation ago, absurd partisan combat, not bipartisanship. Then, just as it is now. As the Bible says, there’s nothing new under the sun. Including constitutional amendments protecting the right of everybody to vote. Why pretend otherwise?

Elizabeth Warren, who has made “Teacher” her main campaign trope at the moment, is telling stories. This teacher seemingly believes that Democratic presidential primary voters are not of the caliber of her law school students, who know about the Constitution, but are school children to be soothed with stories out of a 1960s public school civics primer for 5th graders.

I expected better from her.

My car had been parked at a nearby church. On the walk back from the headquarters building where Liz Warren, Teacher, had schooled the Democratic voters, I mused about the Church’s name: St. Jude.

St. Jude, celestial champion of lost causes, will wind up the patron saint of the Elizabeth Warren for President 2020 campaign if the candidate doesn’t decide on who the real Elizabeth Warren is.

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Jon Hopwood