Tag: American History

The Jehovah’s Witnesses Flag Cases (Part One)

~ Blue Cereal

Ultra PatrioticSeveral years ago, my wife and I moved to northern Indiana from Oklahoma and I started a job at a new school. Day One, first hour, I was about 30 seconds into introducing our opening activity when I was interrupted by announcements via school intercom. “Please stand for the Pledge of Allegiance…”

I wasn’t expecting it, but I figured the routine was pretty much the same everywhere. Hand on heart, I faced the tiny flag hanging in my room and began reciting right along with the tiny anonymous voice on the speaker – “I PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA—”

I wasn’t three words in when I realized that while most of my students had stood, half were barely mumbling the Pledge while the rest weren’t saying out aloud at all. You know that thing in church where you mouth the words to the hymns you don’t know? It was like that, only I’m sure they knew it – this just wasn’t a thing they did. Not with any enthusiasm, anyway. Except for the NEW GUY, apparently.

At that point, of course, there were only two options. Stop – or at least dial it WAY back – on my first day in a new school in front of a new class and baptize my opening day in awkwardness and stifled embarrassment, or… OWN IT. So baby, I OWNED IT.

“AND TO THE REPUBLIC FOR WHICH IT STANDS – ONE NATION, UNDER GOD, INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL.”

And then I went on with my lesson as if this were the most normal thing in the world. The next day, I did the exact same thing – loud and confident, as if I were the most patriotic individual in the state. Never once did anyone question my enthusiasm or belittle my volume. Never once did I think I could risk dialing it back a bit, lest I cast retroactive doubt and awkwardness over everything I’d done since.

I’m not suggesting this was in any way rational. But people rarely are.

“Have To” History: Supreme Court Cases

H2H Supreme CourtI recently finished “Have To” History: Landmark Supreme Court Cases, of which I’m quite proud. I’ve started putting together information and drafts for a second volume, which may or may not be titled something like “Have To” History: A Wall of Separation (Public School Edition).

I’m still working out the title. And the format. And the content. But for whatever reason, I do love me some Supreme Court cases – even the written opinions. Below and in my next post, I’m sharing rough drafts of two of the earliest cases likely to be included. They reached the Supreme Court only three years apart, and both involve little children not saying the Pledge of Allegiance because they believed it violated the Word of God to do so. Both cases were pursued as “freedom of religion” issues, but both were resolved on “free speech” grounds more than anything “wall of separation”-ish.

Oh, and the second case completely reversed everything the Court said in the first. So that was wacky, jurisprudentially-speaking.

Here’s Part One…

One Nation, Quite Divisible, With Liberty and Justice for Those Who Cooperate

Arguably no religious group faced more persecution and hostility in the 20th century United States than the Jehovah’s Witnesses. They proselytized aggressively in the streets and went door-to-door offering copies of The Watchtower and wanting to talk about the “end times.” They were not a group known for political engagement. They didn’t usually vote, most rejected Social Security numbers as a “mark of the beast,” and leadership discouraged serving on juries or other forms of civic participation. Believers were expected to work for a living, obey the law, and “render unto Caesar” – as long as it did not explicitly conflict with the Word of God.

Despite all this, the Jehovah’s Witnesses have arguably done more than any other religious group to promote freedom of religion and freedom of speech in the U.S. To date, they’ve been involved in something like two dozen U.S. Supreme Court cases, almost all of them concerned with First Amendment protections. The vast majority occurred in the 1930s and 1940s.

Heil 'Merica!In the waning years of the Great Depression, as Europe stumbled towards war, patriotism in the United States became mandatory in all but name. Many states passed laws requiring all public school students to salute the American Flag and say the Pledge of Allegiance each day, apparently assuming that nothing promotes heartfelt commitment like mandatory obeisance. If you’ve seen pictures from the era, you may notice that the standard salute looked different than it does today. Typically, it involved the right arm extended forward and upwards at a slight degree towards the flag as participants chanted in unison their devotion to the collective.

In Nazi Germany, a very similar salute was required of all good citizens, although in the faterland, nationalism was personified in their new Chancellor, Adolph Hitler, rather than a mere flag. Jehovah’s Witnesses in Germany refused to salute, citing the Second Commandment – “Thou shalt have no other gods before me” – as well as several other Old Testament passages suggesting that the Lord Their God was not a fan of split allegiances. Joseph F. Rutherford, who succeeded Witnesses founder and leader Charles Taze after his death in 1916, suggested American Jehovah’s Witnesses avoid what they saw as similar oaths back home.

German Jehovah’s Witnesses would soon be sent to their deaths in various Nazi concentration camps, while their American counterparts were merely mocked, harassed, accused, and periodically assaulted. The official eruption of World War II in 1939 only increased these tensions, despite the U.S. managing to avoid direct involvement for the first few years. Meanwhile, some Jehovah’s Witnesses schoolchildren who took their beliefs a bit too seriously for the comfort of the masses became the focal point for what had heretofore been scattered and inconsistent suspicion and hostility.

Minersville School District v. Gobitis (1940)

Lillian Gobitas (the name was later misspelled in court records), age 12, and her brother Billy, age 10, refused to participate in the Pledge of Allegiance. They believed the Bible forbid such direct promises of obedience to anything or anyone other than the Lord God, and were expelled from school as a result. Their case eventually reached the Supreme Court, which determined in an 8 – 1 vote that the school had the right to require the Pledge as part of promoting good citizenship. It wasn’t a violation of Constitutional rights because the requirement didn’t target their religion intentionally.

From the Majority Opinion by Justice Felix Frankfurter:

The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization… The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution…

The wisdom of training children in patriotic impulses by those compulsions which necessarily pervade so much of the educational process is not for our independent judgment. Even were we convinced of the folly of such a measure, such belief would be no proof of its unconstitutionality… But the courtroom is not the arena for debating issues of educational policy. It is not our province to choose among competing considerations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while respecting at the same time individual idiosyncracies among a people so diversified in racial origins and religious allegiances.

Justice Harlan Stone wrote one of the most famous dissenting opinions in Court history in response. Several of his points would be revisited when a new majority overturned Minersville a mere three years later. Behold the power of a well-penned dissent:

The law which is thus sustained is unique in the history of Anglo-American legislation. It does more than suppress freedom of speech, and more than prohibit the free exercise of religion, which concededly are forbidden by the First Amendment and are violations of the liberty guaranteed by the Fourteenth. For, by this law, the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions…

History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities…

The Constitution may well elicit expressions of loyalty to it and to the government which it created, but it does not command such expressions or otherwise give any indication that compulsory expressions of loyalty play any such part in our scheme of government as to override the constitutional protection of freedom of speech and religion. And while such expressions of loyalty, when voluntarily given, may promote national unity, it is quite another matter to say that their compulsory expression by children in violation of their own and their parents’ religious convictions can be regarded as playing so important a part in our national unity as to leave school boards free to exact it despite the constitutional guarantee of freedom of religion.

The Red, White, Black & Blue

While there were vocal critics of the Gobitis decision, especially in the press, many Americans took it as federal validation of whatever they wished to do to Jehovah’s Witnesses in their area. Violence against believers surged dramatically, often times with local law enforcement standing by but refusing to interfere – no doubt out of some degree of personal prejudice, but now with the perceived sanction of the nation’s highest court.

Human SupremesWe like to imagine the Supreme Court as remaining safely beyond the pale of popular opinion or social forces, but they are at times quite human and may even read the news from time to time. The makeup of the Court evolves as well, and shortly after the Gobitis decision, it changed rather dramatically. Chief Justice Charles E. Hughes retired, as did Justice McReynolds. Justice Stone, author of the sole dissent in Gobitis, was promoted to Chief Justice, and Justices Robert Jackson and Wiley Rutledge joined the Court.

Jones v. City of Opelika was a case first considered by the Court in 1941 and once again involved Jehovah’s Witnesses. The issue was whether or not the State can charge “licensing fees” on religious books and pamphlets. The Court initially determined that they could. Justices Hugo Black, William Douglas, and Francis Murphy – all of whom had voted with the majority in Gobitis – added a dissent in which they repudiated their previous decision:

The opinion of the Court {in Jones v. Opelika} sanctions a device which, in our opinion, suppresses or tends to suppress the free exercise of a religion practiced by a minority group. This is but another step in the direction which Minersville School District v. Gobitis (1940) took against the same religious minority, and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided.

Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities, however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that.

Jones was reconsidered the following session, and in 1942 the Court reversed itself on this Neo-Stamp Act. Combined with the comments of Black, Douglas, and Murphy, it was clear that the winds of jurisprudential change were blowing – and briskly.

As it turned out, those little Jehovah’s Witnesses kids still refused to have other gods before the Big One. It was a mere three years before almost the exact same “Heil ‘Merica!” case came before the High Court once again. The second time, the results would be a tiny bit different.

RELATED POST: The Jehovah’s Witnesses Flag Cases (Part Two)

RELATED POST: “Have To” History: A Wall of Separation

“Have To” History: United States vs. Nixon (1974)

~ Blue Cereal

NOTE: I’ve finally completed “Have To” History: Landmark Supreme Court Cases. The following is an excerpt from this work, inspired only by my love of sharing and having nothing to do with current events. (We work very hard in history education to make sure there’s as little connection as possible between what we cover in class and what’s happening in the real world around us. Otherwise – phone calls!) 

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About U.S. v. Nixon (1974)

Three Big Things:

1. In 1972, five men working for the Nixon Administration were caught breaking into Democratic National Headquarters. Investigations revealed much wider-spread wrongdoing by the White House – and efforts by the President himself to cover it all up.

2. When it was revealed that the President recorded his conversations, the tapes were subpoenaed by Congress; Nixon refused, claiming “executive privilege.”

3. The Supreme Court ruled against the President, who resigned to avoid impeachment. “Watergate” became shorthand for all things corrupt, especially in reference to major political scandals.

President Nixon Looking SeriousBackground

President Nixon was a very naughty man. Or, at least, he did some very naughty things (and then lied about it).

Richard M. Nixon began his political career in the House of Representatives, where he served the 12th District of California from 1947 – 1950. In 1950 he successfully ran for one of the state’s two Senate seats, which he held until asked to be the running mate of Dwight D. Eisenhower in the Presidential Election of 1952. While Eisenhower focused on the positives – what he wanted to do for the country – Nixon handled the negatives, attacking opponents and criticizing Democratic policies. It was a successful strategy; Nixon became Vice President in 1953.

Nixon’s involvement in the Eisenhower Administration was much more active than had been typical with prior VPs. He chaired security meetings when the President was absent and interacted with foreign leaders around the world. Nixon was virulently anti-Communist, but surprisingly diplomatic and seemingly unflappable in the face of protests, violence, or other challenges from detractors. He served under President Eisenhower for eight years.

Nixon attempted to ride this momentum to his own administration in 1960 but lost to John F. Kennedy in one of the most famous elections of the 20th century. JFK was young, optimistic, handsome, and Catholic, while Nixon was, well… himself.  Nixon next sought the governorship of California in 1962, but again fell short. During his concession speech, Nixon’s frustration boiled over as he told the reporters that they wouldn’t “have Nixon to kick around anymore.” He was done with politics.

He probably meant it at the time, but it didn’t last long. Six short years later, in 1968, he was elected President.

President Nixon

By 1968, the Vietnam War was beginning to look to many Americans like nightmarish quagmire we remember today. The Civil Rights movement was in full swing but faced violence and ugly backlash with every success. JFK had been assassinated in 1963, Malcolm X in 1965, MLK in April of 1968, and Robert Kennedy – on his way to becoming the Democratic nominee for President – in June. These were days of sex and hippies and drugs and war protests, and while pop culture too often overlooks the many folks simply going to school or work and trying to live their daily lives as best they could, the nation was arguably in its most self-destructive phase since the Civil War.

When times are good, Americans want freedom. When things turn chaotic and dark, however, most people want structure. Decency. A return to “normalcy.” It was out of such times that Nixon re-emerged, promising to restore law and order. He appealed to the “silent majority” he believed still knew how to be proper Americans. His “southern strategy” played on white resentment of black progress and used thinly veiled nativism to secure the support of conservatives and a shaken middle class in whatever part of the country they resided.

It seems to have worked. Nixon won by a substantial majority of electoral votes and the Republican Party picked up seats in both the House and the Senate.

Nixon’s victory did nothing to reduce his hostility towards the press, however. He blamed them for Kennedy’s victory eight years before. He was angry over the 1971 release of the Pentagon Papers which proved that President Lyndon B. Johnson had lied about the Vietnam War – not just a little, but a LOT, and not just to the public, but to Congress. (It wasn’t that Nixon felt particularly protective of Johnson; it was just inconvenient to deal with the resulting skepticism and heightened scrutiny of the office – particularly when trying to do shady, illegal things.)

It wasn’t just the press. He was paranoid about the Democratic Party, war protestors, and his own place in history as well. A covert group of trusted minions known as CREEP (the Committee to Re-Elect the President) engaged in a variety of illegal activities attempting to thwart Nixon’s many perceived enemies. They broke into offices, stole secrets, infiltrated opposition groups – whatever it took to enforce unquestioned loyalty with little regard for either decency or the law. As Nixon would later tell interviewer David Frost, “when the President does it, that means it’s not illegal.”

Clearly these were different times. We’re fortunate to have evolved so far beyond such things.

The Watergate Break-In

In June of 1972, a group of men known as “The Plumbers,” who worked for CREEP, broke into the Watergate Office Building which housed, among other things, Democratic National Committee Headquarters. It’s not clear specifically what they hoped to accomplish, but it seemed they might be looking to bug some phones and steal a few files. The break-in was reported the next day in the press, but considered relatively minor news at first. The White House denied all knowledge of or involvement in the effort.

Over time, however, persistent investigation and reporting – particularly that of Bob Woodward and Carl Bernstein at the Washington Post, began to uncover deeper shenanigans in and around the Oval Office. While Nixon had not necessarily ordered the break-in, he had clearly been involved in covering it up. The President used a strategy of repeated denials, constant misdirection, and hyperbolic accusations regarding the motives of his accusers to offset each new revelation. Eventually, the average American was both too numb to know what to believe and tired of hearing about it or trying to make sense of it. Nixon was re-elected easily in 1974, but the issue refused to die.

Eventually a Special Prosecutor was appointed (Archibald Cox) and the Senate began hearings into the break-in and related events. During these hearings, it was unexpectedly revealed that the President secretly recorded every discussion taking place in the Oval Office or on the Oval Office phone. “Hmm,” the Senate thought. “Those sure would be handy to have.” So, they subpoenaed the tapes.

Nixon at this point insisted that the Special Prosecutor to drop the investigation. He wouldn’t, so Nixon ordered his Attorney General to fire Cox. He refused, so Nixon accepted his resignation. He then ordered the Deputy Attorney General to fire Cox, with the same results. Finally, Nixon tried the Solicitor General, Robert Bork, at that point the Acting Attorney General. Bork fired Cox and kept his job, thus concluding the “Saturday Night Massacre.” (Bork was later nominated to the Supreme Court by President Reagan but could not secure Senate approval.)

Nixon tried to pacify Congress with heavily edited transcripts, summaries, and audio excerpts, but the Senate wanted it all. More and more, the public was beginning to agree. In 1974, the issue reached the Supreme Court.

United States v. Nixon (1974)

Attorneys for the President argued that the separation of powers as mandated by the U.S. Constitution meant the Judicial Branch lacked justiciability in this case, which was strictly between the President and Special Prosecutor – both members of the Executive Branch. In short, it was a family matter. The Court had no role.

Their slightly more plausible argument was that “executive privilege” protected the President from being forced to release the tapes. High level politicians, foreign leaders, and advisors must be able to speak with candor to the President, knowing their privacy would be protected. If high-level conversations were subject to public scrutiny, people would speak less openly and honestly. Politics would trump effective leadership.

Attorneys for the rest of the U.S. government argued that even if executive privilege did require some discretion as to what information could be made public, there was a nevertheless substantial state interest in a fair and complete criminal investigation. It wasn’t just the President; men were going to prison for their roles in the break-in, the cover-up, and whatever else was being revealed along the way. There was every reason to believe these tapes contained specific information related to the investigation; justice demanded their release.

In other words, they weren’t looking for launch codes or wanting to publish ‘behind-the-scenes” dirt on controversial foreign policy decisions. They wanted to know if there was a record of the President saying, “Let’s break the law and then cover it up” or “Hey, Dean – nice job on that felony offense!”

The Decision

In their unanimous decision, penned by Chief Justice Warren Burger, the Supreme Court ordered the President to turn over the tapes. They’d be listened to “in camera” – in chambers, privately, to determine which parts were relevant to the case without revealing state secrets or other privileged information to the public.

The “separation of powers” argument, it turned out, did not mean what the President’s attorneys wanted it to mean:

In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

Besides, the Chief Justice added, the issue was before the Court not in spite of the separation of powers, but specifically because of them. Quoting Chief Justice John Marshall’s opinion in Marbury v. Madison (1803), he concluded, “it is the duty of the courts to say what the law is.”

As to executive privilege, the Court acknowledged that the Executive requires some expectation of confidentiality. Military secrets, national security, difficult policy choices, all required the sort of blunt debate and absolute honesty impossible without it. But the President wasn’t claiming that national defense secrets were involved, or sensitive foreign policy choices, or complex policy debates. He was claiming a blanket right to operate in absolute isolation and without accountability. That, the Court said, is not how it works.

Aftermath

Twelve days later, the White House released the tapes. It was soon discovered that some sections had been erased, despite the Court’s order. The rest, however, provided more than enough damning information to eliminate any chance of Nixon surviving impeachment. A few days after the release of the tapes, the President resigned. Gerald Ford became President, and later pardoned Nixon.

Although Nixon lost his case, the Court’s decision in United States v. Nixon did acknowledge for the first time a degree of executive privilege. Numerous administrations since have made similar claims, looking to protect themselves in the name of protecting the country. At the same time, “Watergate” or anything with “-gate” tacked on to the end has become popular shorthand for any number of political scandals or controversies.

“Have To” History: A Wall of Separation

~ Blue Cereal

H2H: Supreme CourtNOTE: I’ve finally completed “Have To” History: Landmark Supreme Court Cases (or at least the initial draft). At the moment, it’s available on Teachers Pay Teachers and intended to be an easily affordable resource for pretty much any American History or Government teacher of whatever level – from 8th Grade Civics to APUSH. I’m not looking to make serious money or anything, but it took a long time to write and edit, so until I have time to pursue other avenues, there it is.

In the meantime, it’s on to the resource book I’ve wanted to put together for a much longer time – Supreme Court cases related to religion in the public square, particularly in relation to public schools. I find the topic fascinating and the cases and their written opinions far more engaging than pretty much anything else in the annals of jurisprudence. I realize this makes me both weird and slightly pathetic, but so be it. This post is the first chapter of this new undertaking. If you’d like to read more, go buy the first one so I can afford to order pizza and keep working on it.

“Have To” History: Stuff You Don’t Really Want To Know (But For Some Reason Have To) About The “Wall of Separation”

Three Big Things:

Madison Talking Bill of Rights1. The First Amendment to the U.S. Constitution contains six specific protections, two of which are related to religion. The “Establishment” Clause says government cannot support one religion over another or promote the idea of religion over non-religion; the “Free Exercise Clause” says government cannot target or hinder a specific religion or religion in general.  

2. The phrase “a wall of separation between Church & State” comes from a letter by President Jefferson to the Danbury Baptists; while not part of the Constitution, it’s been cited so often by various Supreme Court decisions that it might as well be.

3. The 14th Amendment, passed shortly after the Civil War, requires states to recognize most of the same rights guaranteed on the federal level by other amendments – or at least that’s how it’s come to be understood. The application of principles found in the Bill of Rights to state or local government via the 14th Amendment is known in legal circles as “incorporation.”

Background: A Bill of Rights

The U.S. Constitution was written as a replacement for the Articles of Confederation – the new nation’s first effort at writing a broad set of laws by which to govern itself. The Articles had guaranteed the States almost complete sovereignty and absolute independence from one another – a great idea in theory, but not as workable in practice.

It was understandable that the Framers would err on the side of freedom, having finally won an extended and bitter war with the Motherland over a King they’d claimed was a “tyrant.” There were over two dozen specific examples of his excessive rule-making and liberty-crushing behavior included in the break-up letter penned by the Colonies – a missive better known as the “Declaration of Independence.”

But they had, perhaps, swung a bit too far away from structure and security. The Constitution was an effort to rectify the resulting difficulties. Turns out that sometimes, thoughtful limits actually grease the gears of liberty.

When the U.S. Constitution was finally ready for public review and debate in the late 1780’s, there were many who thought we’d once again overcompensated – this time back towards too much central authority and too little freedom. They wanted some sort of written guarantee they wouldn’t be oppressed by this bigger, stronger government.

The authors were appalled at this concern. Obviously, any powers not specifically granted to the national government by this document remained with the States and the People thereof! To spell out those protections would be… redundant! Possibly even limiting! What if listing some specifically guaranteed rights implied that they were the only ones thus secured?!

It almost got ugly.

Nevertheless, a compromise was reached. The Constitution was ratified, and a collection of ten clarifying Amendments almost immediately passed as a package deal. Thus, the “Bill of Rights.” Despite the numbering system, there are far more than ten rights included. Some Amendments, like the Fourth, Fifth, and Sixth, are packed with due process and thick verbiage. Others, like the Eighth, are fairly crisp – although written in such a way as to allow at least 225 years of subsequent debate as to exactly what they mean.

The Third is all but irrelevant. The Seventh, strangely technical. The Second – well, the Second was badly written from the moment it was passed. Whatever it did or didn’t intend to say about the right to “bear arms,” James Madison’s English teacher must have had a fit.

But the best-known is probably the First.

The First Amendment   

The First Amendment contains six specific protections, somewhat related, and presumably so very important that they all tied for first when the Framers were debating what to guarantee the mostiest mostest:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

These are the biggies that squeezed in ahead of militias and quartering of soldiers, and even beat out due process in order of presentation. The right to protest. The right to associate with whomever you wish, including but certainly not limited to political organizations of any and all stripes. Freedom of the press and of speech – absolute linchpins to any nation hoping to maintain the slightest credibility as a true democracy.

But coming ahead of all of them – earning the first two slots in all of Amendment-dom – are the twin ‘freedom of religion’ clauses.

Congress shall make no law respecting an establishment of religion…

In the most basic terms, this says the government may not do anything to promote or encourage a particular religion or the concept of religion in general. Doing so creates a double curse. It leads to the marginalization and eventual persecution of those with different beliefs (whether that difference is major or minor), AND it soils the very faith the government is promoting by making it a tool of secular authority, regulated by political maneuvering and flawed men rather than one’s own spiritual journey.

A faith mandated by the guys with guns and the keys to the jail is, of course, no faith at all.

Or prohibiting the free exercise thereof…

This is the part which says that the government may not do anything to discourage, limit, or punish a particular religion or the concept of religion in general. Hopefully the problems with that sort of behavior are self-evident.

The President and Some Baptists

TJ WorkingAs to the phrase “wall of separation between church and state,” we have Jefferson to either thank (or blame, depending on your point of view). Well, him and the Baptists.

In 1801, while Jefferson was President, he received a letter from the Danbury Baptists Association in Danbury, Connecticut. They had some concerns about religious freedom and what they saw as inadequate delineation between the secular and the spiritual:

Our sentiments are uniformly on the side of religious liberty: that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, {and} that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor.

These Danbury Baptists were asserting that faith is between the individual and his God, while the government is simply supposed to keep us from killing one another or taking each other’s stuff. That’s it – no getting involved in issues best left to the pulpit or the prayer closet. They were frustrated at what they perceived as local governmental practices, indirectly promoting on sect over another, and a growing tendency for those seeking power to fling accusations of godlessness at opponents who refused to use their secular authority to do the same.

Way back in the day, that is.

That is, however, the logical and historical result when you have a religious population and a government of-the-by-the-for-the people. It’s natural to want government to step in and take “your side.” It’s the flip-side of religious freedom – where two or more or gathered, they’ll immediately begin arguing about the finer points of hermeneutics. Unless a government makes substantial and ongoing efforts to avoid such entanglements, those arguments naturally spill over into the secular realm.

It was Jefferson’s reply which gave expression to what has become the most common understanding of the First Amendment’s guarantees regarding matters of faith:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.

There it is.

By itself, it’s just a phrase in a letter. But it’s a phrase in a letter which has been repeatedly referenced and validated in Supreme Court decisions and has become an entrenched and widely accepted interpretation of First Amendment protections through case law and sheer longevity. In other words, it’s as close to belonging in the actual text of the Constitution as something can be without actually being in the text. Then again, it didn’t really matter very much for the next hundred years.

The 14th Amendment and “Incorporation”

Lady Justice w/ LightingPrior to the 14th Amendment, the protections offered by the Bill of Rights applied exclusively to the Federal Government. While most States had similar protections in their own constitutions, these were inconsistent and locally interpreted. The 14th Amendment changed all of that in ways neither immediate nor obvious. Passed in 1868 as part of the ‘Reconstruction Amendments,’ its initial intent was to guarantee full and equal citizenship for Freedmen – newly freed Black Americans.

It reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It was the first time that the States had been specifically targeted this way. It chipped away substantially at the wall separating State and Federal power – with central authority clearly coming out ahead. Still, several generations passed before the Supreme Court began regularly interpreting the Fourteenth Amendment as a means of “incorporation” – applying the Bill of Rights to the States by way of that part about “equal protection.”

In 1947, this gradual “incorporation” finally crossed into the realm of public schooling. Well… sort of. It made it as far as the bus. The case was , and it began a long and winding path of jurisprudence shaping the relationship between religion and public schools.

Spoiler alert: not everyone would be happy with the results. 

The Ghost Dance Movement(s)

~ Blue Cereal

Stuff You Don’t Really Want To Know (But For Some Reason Have To)

Three Big Things:

Ghost Dance Green1. The tribes of the Great Plains faced confinement or extermination as the 19th century drew to a close; they were desperate and confused in the face of ongoing U.S. expansion, aggression, and manipulation.

2. The “Ghost Dance” promised to bring back their former way of life, to raise their dead, and to bring peace and prosperity to all who believed.

3. Variations in tribal interpretations of “Ghost Dance” teachings and white fears of Amerindian uprisings led to unnecessary death and violence, most notably at Wounded Knee in 1890 – the effective end of Native resistance on the Great Plains. 

Background

The end of the American Civil War allowed the U.S. to turn its military focus to the Great Plains. The Homestead Act (1862) codified and intensified the westward expansion which had been a defining feature of the United States since its political birth a century before. The Indian Removal Act of 1830 had largely cleared the southeastern portion of the continent of its Native American inhabitants, most famously the Five Civilized Tribes, who were forcibly settled in Indian Territory (I.T.), along with a number of lesser-known tribes, where they did their best to rebuild what lives they could in this strange new land.

When the Civil War broke out, the Five Civilized Tribes largely supported the Confederacy – some wholeheartedly, others in part. Upon Union victory, Congress – controlled by the same Radical Republicans who would try so intently to “reconstruct” the South – punished the inhabitants of I.T. by drastically reducing their land allotments. The Five Tribes were confined to what is today the eastern half of Oklahoma, thus opening the western half to a new round of forced migration. This time it would be the tribes of the Great Plains – roughly the middle third of the U.S. – who would be hunted, cajoled, or otherwise forced onto this ever-shrinking reservation.

The Post-Bellum Indian Wars

The U.S. used a variety of tactics against the Plains Tribes in the decades after the Civil War. A favorite of George A. Custer was the early morning winter attack. Soldiers would surprise a village of “hostiles,” bundled with their women and children against the cold, and open fire just before dawn. Startled warriors were caught without their horses, weapons, or even clothing, and were generally slaughtered with relative ease. 

A second strategy was less direct but arguably even more effective. Buffalo were essential to cultures and basic survival of most Plains Amerindians. Food, clothing, tools, storage, and rituals all involved parts of this ubiquitous beast. The U.S. began encouraging large-scale hunting of these creatures, on horseback or – no joke – by railroad. Excited urbanites paid good money for the chance to lean out of train windows firing rifles into the herds. The carcasses were often left in the sun to rot.

Then, of course, there were the actual battles between U.S. soldiers and various Plains tribal groups. There were a few Amerindian victories – most notably the Battle of Little Bighorn (aka, “Custer’s Last Stand”) in 1876, but by and large the Native Americans adapted poorly to the sort of hierarchical structure and sustained discipline essential for U.S.-style military engagement. While brave and creative warriors, they carried a deeply-rooted sense of individuality and a distaste for telling other men what they could or could not do. However much this stirred the romantic notions of distant whites, it completely undermined efforts to coordinate large-scale resistance.

In short, the U.S. had them out-numbered, out-gunned, out-financed, and out-structured. By the late 19th century, few Amerindians of any tribe could claim much hope for their collective futures.

The First Ghost Dance: Wodzibob 

Around 1870, a Paiute holy man by the name of Wodzibob began sharing a vision he’d had in which God had taken him up to heaven and informed him that a time of resurrection was soon coming. The dead would be resurrected and the buffalo would return. The people could help speed this by performing a series of rituals, most notably an extended dance involving the entire community, women as well as men, moving rhythmically in a large circle. 

“Round dances” were not new to the Plains Amerindians; most tribes had their own variations. Dancers sometimes entered trance-like states leading to visions or prophesies, so while Wodzibob’s message was new, the format and source were familiar. It was left to the individual to decide the extent to which someone else’s revelation applied to them. As an established healer and respected member of the tribe, Wodzibob’s teachings spread quickly and endured for several years, until it gradually became clear his predictions were not coming to pass in the promised time frame. 

WovokaThe Second Ghost Dance: Wovoka

By the late 1880s, the majority of the tribes native to the continental United States had been defeated – by warfare, by disease, by the loss of land, and – in the case of the Great Plains – the disappearance of the buffalo. Many were forced onto reservations or packed into Indian Territory where they were expected to farm and practice “white” lifestyles on unwilling land, without essential tools or adequate supplies, and minus the requisite desire. The provisions “guaranteed” by the U.S. government either never arrived or were of such poor quality as to prove useless. The proud nations of the Great Plains were broken and bewildered, and quite possibly nearing extinction.  

In January 1889, an emerging Paiute spiritual leader named Wovoka (aka “Jack Wilson”) claimed to have experienced a vision reminiscent of Wodzibob’s two decades before. Wodzibob’s teachings and experiences would have been familiar to Wovoka, both as recent tribal history and because his father had been a close associate of the revered shaman, so it’s probably no surprise the basic message was the same:  those who’d been lost would soon return, as would their way of life, so have faith and dance.

Wovoka’s message, however, reflected additional influences, particularly his exposure to Christianity. Wovoka taught that the people should love one another, avoid stealing or lying or even fighting the whites, and do their best to live in peace even with those who had abused them. Tribal rituals involving self-mutilation were condemned, although by some accounts Wovoka punctured his hands – a “self-inflicted stigmata” to reflect his role as either the prophet of the returning Christ, or perhaps some form of the Messiah himself.

There was also a bit where God put Wovoka in charge of the weather, at least in the western half of the United States. That’s the tricky thing about visions and faith and conflicting primary sources – they make history so much more interesting but also so… messy.

The Wounded Knee Massacre

Ghost Dance SiouxAs tends to happen with ideas as they spread, Wovoka’s message quickly evolved as it was taken up by different tribes. With the Lakota Sioux in particular, it took on a more militant tone. Their concept of renewal – of heaven on earth – was incompatible with the presence of white folks, despite Wovoka’s calls for racial unity. It was also most likely a Lakota who added the idea of a “ghost shirt,” which would render its wearer impervious to bullets (since, presumably, you can’t shoot ghosts). It was exposure to the Sioux version of Wovoka’s visions which most led to white characterizations of the dance at the heart of the movement as a “Ghost Dance” with militant overtones. 

As U.S. concern over a possible Sioux uprising simmered, they more and more saw the dance as inherently hostile, or even preparatory for war. It was this fear that led to the arrest and subsequent death of Sitting Bull in 1890, a few weeks before Christmas. U.S. military officials next targeted a Lakota chief by the name of Big Foot. Most of his followers were women and children whose men had been killed resisting U.S. aggression. As those who’d lost the most, they were often the most devout adherents of the dance, pushing themselves until they collapsed or became otherwise incoherent.

Wounded Knee MapBig Foot had led his group to the Pine Ridge Reservation to surrender. They were told to set up camp while officials figured out what to do with them next. The next day, December 29th, 1890, soldiers were sent into the camp to gather any remaining weapons among the Sioux. It’s unclear to what extent the Lakota resisted. Some accounts refer to a medicine man encouraging them to don their “ghost shirts” and fight, while others focus on a single young Sioux, probably deaf, who attempted to retain his rifle. Whatever the specifics, at some point a shot was fired and things pretty much went to hell from there.

Soldiers opened fire on the camp while panicked Sioux tried to grab what weapons they could to fight back. When the shooting stopped, 153 Lakota and at least 25 soldiers were dead. Most of the U.S. deaths appeared to be the result of “friendly fire,” which would be consistent with the sort of panic that comes after weeks of creeping paranoia.

Aftermath

Although periodic smaller conflicts would continue for a time, the Massacre at Wounded Knee marks the effective end of “Indian Resistance” on the Great Plains. Seemingly rubbing salt into the tragedy, the U.S. awarded twenty medals of honor to surviving soldiers for their actions.

As news of events at Wounded Knee spread, reactions were mixed. Some saw the military’s behavior as a gross overreaction – further abuse of a people clearly already defeated and pacified. Whatever the extent of the backlash, it did result in temporary efforts by the U.S. to more consistently honor its treaty obligations with survivors.

It would be nearly a century before American Indian groups began actively reclaiming their status and tribal identities.

Mass Grave Wounded Knee

John Ross vs. the 1835 Treaty of New Echota (from “Well, OK Then…”)

~ Blue Cereal

NOTE: I’m revising and reorganizing much of the content from “Well, OK Then” as part of an overall effort to ‘clean up’ this site. This post is one of those newer, better versions of something previously shared.

Chief John Ross was a “mixed-blood” Cherokee who nevertheless became the best-known and arguably the most effective tribal leader of his generation. His supporters tended to lean traditional – they were conservative, and old-school – wanting little or no contact with whites and uninterested in their version of “progress.” 

Because he would not agree to voluntary removal, the U.S. found others in the tribe who would. They plied them with land and money and the argument that this was going to happen one way or the other – so they might as well make it as painless as possible. The signers of the Treaty of New Echota (1835) violated the most sacred of Cherokee laws while lacking the status to even speak for the tribe to begin with. 

Ross was not impressed, and wrote this to Congress on September 28th, 1836:

It is well known that for a number of years past we have been harassed by a series of vexations, which it is deemed unnecessary to recite in detail, but the evidence of which our delegation will be prepared to furnish…

{A} contract was made by the Rev. John F. Schermerhorn, and certain individual Cherokees, purporting to be a “treaty, concluded at New Echota, in the State of Georgia, on the 29th day of December, 1835, by {U.S. Commissioners} and the chiefs, headmen, and people of the Cherokee tribes of Indians.” A spurious Delegation, in violation of a special injunction of the general council of the nation, proceeded to Washington City with this pretended treaty, and by false and fraudulent representations supplanted in the favor of the Government the legal and accredited Delegation of the Cherokee people, and obtained for this instrument, after making important alterations in its provisions, the recognition of the United States Government. 

And now it is presented to us as a treaty, ratified by the Senate, and approved by the President, and our acquiescence in its requirements demanded, under the sanction of the displeasure of the United States, and the threat of summary compulsion, in case of refusal… 

Chief Ross knew his facts and his audience. He wastes little energy on extraneous issues or the details of past problems. He goes straight to what is essentially contract law – and accuses the U.S. of making a fraudulent deal. Abusing Indians might not have been all that un-American, but bogus contracts were certainly close. 

By the stipulations of this instrument, we are despoiled of our private possessions, the indefeasible property of individuals. We are stripped of every attribute of freedom and eligibility for legal self-defence. Our property may be plundered before our eyes; violence may be committed on our persons; even our lives may be taken away, and there is none to regard our complaints. We are denationalized; we are disfranchised. 

Ross doesn’t talk about the land, or his people’s culture, etc. He doesn’t badmouth the individuals who signed the Treaty of New Echota, beyond indicating they had no right to do so. 

He instead highlights elements of the situation which were more likely to resonate with his audience. After establishing the invalidity of the treaty, he argues that it violates their property rights. Few things were more sacred to real Americans. John Locke argued that protection of property – which he defined as “life, liberty, and estate” – was the sole function of government. Jefferson replaced “estate” with “pursuit of happiness,” but lest there be any confusion, the Fifth Amendment specifically defends “life, liberty, and property” from government intrusion without “due process.”

Which this, clearly, was not. 

Ross then throws in freedom (liberty), the right to defend yourself before the law, and personal safety. Those are the big three – life, liberty, and your stuff. They’re held together by the underlying assumption that such “natural rights” are every man’s refuge in a nation built on such ideals. 

It’s a brilliant approach. He has facts and reasoning on his side. Unfortunately, facts and reasoning weren’t going to decide this issue – the results were determined before he’d even bought his ticket. The U.S. was concerned only with rhetorical cover at this point. The Treaty gave them that – they knew damn well it wasn’t legitimate… they just didn’t care. 

Ross does speak to the ethical abhorrence of the situation, albeit briefly:

We are deprived of membership in the human family! We have neither land nor home, nor resting place that can be called our own. And this is effected by the provisions of a compact which assumes the venerated, the sacred appellation of treaty.

We are overwhelmed! Our hearts are sickened, our utterance is paralized, when we reflect on the condition in which we are placed, by the audacious practices of unprincipled men, who have managed their stratagems with so much dexterity as to impose on the Government of the United States, in the face of our earnest, solemn, and reiterated protestations.

Then, like a good five-paragraph essay, he repeats his main point by way of conclusion. 

The instrument in question is not the act of our Nation; we are not parties to its covenants; it has not received the sanction of our people. The makers of it sustain no office nor appointment in our Nation, under the designation of Chiefs, Head men, or any other title, by which they hold, or could acquire, authority to assume the reins of Government, and to make bargain and sale of our rights, our possessions, and our common country. 

And we are constrained solemnly to declare, that we cannot but contemplate the enforcement of the stipulations of this instrument on us, against our consent, as an act of injustice and oppression, which, we are well persuaded, can never knowingly be countenanced by the Government and people of the United States… 

{We} appeal with confidence to the justice, the magnanimity, the compassion, of your honorable bodies, against the enforcement, on us, of the provisions of a compact, in the formation of which we have had no agency.

It’s almost like he thinks governmental power is derived through the consent of the governed. “No removal without representation!”

Not really very catchy, I guess. 

Ross’s complaints would fall on deaf ears. The powers-that-be had already undermined Cherokee sovereignty via two Supreme Court cases. In the first one, Cherokee Nation v. Georgia (1831), the Court refused to hear the actual case – a complaint by the Cherokee that the State of Georgia kept passing laws which infringed on their guaranteed sovereignty within their own boundaries. The Court determined that the Cherokee certainly weren’t American citizens, but neither were they exactly a sovereign nation – at least not any more. Their relationship with the U.S. was like that of a “ward to its guardian.”

In other words, they were Dick Grayson to America’s Bruce Wayne. And they would never turn 18 in the eyes of the law. 

The second case was brought by a white guy – a missionary to the Cherokee by the name of Samuel Worcester.  Georgia had passed a law requiring non-Cherokee to get permission from the state before going onto Cherokee land – without bothering to include the Cherokee in the process. Worcester ignored the prohibition and kept doing his thing, and was arrested and jailed. In Worcester v. Georgia (1832), the Supreme Court declared that only the federal government could deal with the tribes – Georgia couldn’t do that.

The decision was considered a victory for the Cherokee, but it didn’t really change anything. President Jackson is often quoted as having said “Marshall has made his decision, now let him enforce it!” There’s no record of such as statement, but it was certainly consistent with Jackson’s general attitude towards the Court, the Natives, and anyone else who disagreed with him about anything ever. 

The Court’s decision did not, in any case, shape or limit anything Jackson or Congress chose to do in relation to the Tribes thereafter. That the other two branches could ignore such a decision with impunity was a pretty clear indication of the status of a bunch of “savages” vs. the segment of “all men” actually represented.

So it’s 1836 and the Treaty of New Echota has been signed, by influential Cherokee if not by those actually authorized to do so. Stand Watie, Major Ridge (it’s a first name, not a title or rank), Elias Boudinot, and others, led nearly 10,000 of their countrymen to Indian Territory. 

This was NOT the “Trail of Tears.” This was the “voluntary” part, more or less. It was several years before the remaining Cherokee were rounded up by force and driven to join their people far to the west. The suffering on this journey is well-documented and not one of the prouder moments in U.S. History. 

The later arrivals, after so many months of death and suffering, were not particularly happy to see their earlier counterparts, already established in what would later be known as “Oklahoma.” The signing away of their lands wasn’t received much differently than if they’d offered up a few hundred of their virgin daughters for debauchery and eventual beheading. It was not only wrong, it was specifically against Cherokee law and carried the strongest possible consequences. 

Several of the leaders of the “Treaty Party,” whose names had validated the removal treaty, were assassinated on the same night, not long after the remaining Cherokee arrived. It’s assumed that John Ross was behind this, or at the very least was aware of it before it happened, but no one knows for sure. 

Whatever the justice or injustice of this decision, it isn’t the sort of thing that smooths transitions or promotes unity. The tensions weren’t new – full-bloods already tended to be pretty conservative while mixed-bloods were far more receptive to change and some elements of white culture – but this didn’t help. These same divisions will reappear in less than a generation when the white guys start dragging the Five Civilized Tribes into their “Civil War.”

It’s worth noting that the time period between Indian Removal in the 1830s and the start of the Civil War in 1861 is considered something of a “Golden Age” for the Five Civilized Tribes. This might be partly a sort of historical “spin” to offset white guilt over removal, but it’s not without merit.

The Tribes had brought their Black slaves with them to Indian Territory. The story of slavery among the Five Civilized Tribes is a whole other tale, but the short version is that by and large, slavery among the Tribes was far less onerous than that practiced by white southerners. Slavery is still slavery, of course, but it generally lacked the malice and violence brought to mind when discussing early American history. 

For a quarter of a century, then, the ‘Red Man’ and the ‘Black Man’ lived in relative peace and quiet in Indian Territory. They rebuilt their governments, their schools, their presses, their churches, and their lives. They learned to adapt to the realities of this new territory and enjoyed a rare generation free of white interference. 

Until that war thing, at least. Once that started, it was all pretty much downhill for the Cherokee and every other “civilized” tribe. For good.