Outrage over the death of Trevon Martin March 30, 2012
Posted by nickmalik in News and politics.Tags: cunningham, stand-your-ground, trevon, zimmerman
2 comments
As I post this, it is late March, and Trevon has been dead for a little over a month. There are new investigations into the case, triggered in large part by an online petition and the publicity generated by social media. The originator of the online petition, as it turns out, is an Irish-American named Cunningham who attended a traditionally black university (Howard). In an article on this interesting footnote, many of the commenters berated Mr. Cunningham for starting the petition “before all the facts were known.”
Their criticism makes no sense to me, because the facts would not have been known if it weren’t for the online petition. You see, the police were done. The investigation was called off. There was not going to be any further attention, and no further facts were going to be discovered in the case, because the case was effectively closed. According to the prosecutor’s office, there was no crime.
That is, it was closed until it was REOPENED by Mr. Cunningham and Trevon’s parents and millions of other people who were outraged by the insane behavior of the Florida elected officials who figured it would be cool to ignore the death of an unarmed teenager whose only crime seems to be the color of his skin.
Some of my friends believe that my outrage in this case is simply hyperbole… that we should all calm down and just trust the justice system. I believe that the American justice system is part of the problem; that it failed Trevon just as it has failed tens of thousands of other people. Unfortunately, I don’t have a nice clear cogent argument to support my belief… until now.
Today, I read the following post from someone who is well educated in legal matters. I’d like to share this contribution with you, and keep it for reference, so that the next time someone asks me why I believe justice was averted in the original investigation, I would have something to point to.
This is a post made by Michael Marowitz in response to an MSNBC news article on Cunningham. I did not edit it in any way.
To those who decry Cunningham’s efforts as unjustified before all the facts of the incident become known:
Under the law of self-defense, the amount of force used to defend must be proportionate to the amount of force used to attack. There’s an old saying that applies here: you don’t bring a gun to a fist fight. Even if everything Mr. Zimmerman says is true, that he was attacked first, his admission that he had shot an unarmed man would have given rise to his arrest in most states of the union. He can use the doctrine of self-defense to defend against whatever charge or charges will ultimately be brought, but that happens in court after charges are brought, and certainly the possibility of raising self-defense as an affirmative defense is no basis for not placing him under arrest and requiring him to post bail to secure his freedom from incarceration prior to trial.
The Florida Attorney General who declined the suggestion of the case detectives that a manslaughter case be charged against Zimmerman and has stopped Zimmerman from being arrested is one villain here. He has used his prosecutorial authority to depart from the norms of criminal law–authorities always arrest a confessed killer who gunned down an unarmed man. And people who have protested against this injustice have every right to complain of disparate treatment.
However limited the known facts are, those facts that are not disputed demanded that an arrest be made. Moreover, this case shows how dangerous stand-your-ground laws are. There’s a concept in constitutional law that says that some laws must be struck down as void for vagueness. In simple words, if a law fails to have clear standards to be applied, the law should not be applied. In Florida, the law allows a gun wielder on the streets to shoot dead anyone who the shooter believes is going to do "harm or commit a violent felony." As stated earlier, ordinary self-defense requires any that the person asserting the defense must show that lethal force was necessary to stop a lethal assault, which plainly wasn’t the case here. Whether its NRA, the ALEC commission, Wal-mart, or gun manufacturers who pushed this Florida law and similar laws in 20 states intended this result of not, it was clearly a conceivable outcome of such a vaguely worded law and it substantially dilutes protections against the excessive use of force in self-defense. In fact, such laws are an abomination of classic self-defense principles that have governed Anglo-Saxon law for centuries.
The only exception of late to the use of lethal force as a defense is the allowance that people in their homes may use lethal force against burglars invading the home. By taking the principle of the use of force outside one’s home, the purveyors of deadly weapons and their supporters have placed every citizen at risk of wrongful killing by wannabe John Waynes like Zimmerman. Stand-your-ground laws are legal abominations that should be eliminated wherever they have been adopted.
Michael L. Marowitz
J.D., J.S.M. (Master’s in law with emphasis on constitutional law, Stanford Law School, 1981)
If your loved one had died on 9/11… January 9, 2012
Posted by nickmalik in reflection.add a comment
I follow, online, the musings of a thoughtful and provocative individual named Harry Tucker. This morning, Harry posted on Facebook about an e-mail he had received, from a stranger, asking about a friend of his who had died on 9/11. He wrote about the e-mail in his blog.
I never had the honor of meeting Harry’s friend Mr. Narender Nath. I knew many people who were in New York that day, and I worried about them, but my friends were across the street, at the World Financial Center, and were not injured. Mr. Nath was not so fortunate. From the way Harry describes Mr. Nath, I’m sure I would have liked him. The world is 3,000 parts sadder and lonelier for that day, and over 100,000 parts sadder and lonelier for the wars that followed. The world has lost so many people because of the arrogance of criminals in leadership positions.
Most of the responses to Harry’s post, on Facebook, were positive. Most of Harry’s friends commented about how touching it was, or how inspiring, that a family, thousands of miles from New York, had taken a poster from a baseball game with the name of a 9/11 victim and had framed it in their home. This particular family had received the name of Mr. Nath and had found Harry online to ask if he knew of Mr. Nath’s family address.
I say “most” of the comments were positive because there was one exception: me. My first response, upon hearing of this curious chain of events, was to respond as follows:
Honestly this story is a little bit creepy. I’m sure that given a choice between being alive or being a conversation piece in a distant living room, Mr. Nath’s family would choose the former. I doubt his widow will be offended, but on the other hand, how would you feel if the death, not life, of your loved one was enshrined in a stranger’s home?
I sure hope I have not offended Harry or his friends. They were puzzled by my response on Facebook. Most found it inspiring that a family, thousands of miles away, had chosen to remember Mr. Nath. I do not find it inspiring, and the fact that I feel so differently is driving me to write this reflection.
—
A few years ago, my father passed away. It is normal, in the grand scheme of things, for a son to someday have to face the death of his father. That does not make it easy. I stood and spoke at his funeral, and was the executor of his will. I miss him every single day. How I wish he were still with me, to see how his grandchildren have become such wonderful young adults. He loved them, and me, with every joyous fiber of his being. Anand Malik was, and remains to me, the leader of the band.
As I was writing the words I planned to say that day, I thought about the things he would want to hear, and about how he wanted to be remembered. In the days and weeks that followed, I thought about how I want to be remembered, and it changed my life. Since then, I have strived each day to be more memorable to my family, my friends, and the people I have come into contact with. I have thought about the results of my life, and my own vision of the purpose of my being here.
I have always felt that it is the job of a “good man” to leave each room a little “better” than when he arrives. Taken metaphorically, that means to make sure that my touch on the world is one of improvement, value, kindness, respect, integrity, and love. As a result, I want each person who remembers me to remember the things I have done, and the way I lived. I want them to remember the example I set, and the honorable and loving children I helped to raise.
That was going through my mind when I considered this story.
The thoughtful family that received this poster, in a baseball game, knew Mr. Nath only by his name. They took the time to research him online, and I hope, through the writings of his friends, Mr. Nath is being remembered for his contributions. However, the reason that this anonymous family wanted to learn about Mr. Nath was not because of who he was… it was because of how and where he died. If Mr. Nath had died one day earlier, or had died in a car accident, or had passed from liver cancer, he would not be remembered a decade later by strangers in a distant place. His family would have missed him just as much, and his light would have gone out just as early, but his name would not have been on a placard, handed out at a baseball game, and held up high during the playing of the national anthem.
So, yes, I found it creepy that a man who was surely loved by his family and friends was being remembered, in kindness, by a stranger based solely on the circumstances of his death.
Someday, I will die. When I do, I want my family and friends to remember me as a thoughtful, creative, kindhearted man, who contributed works of art, expanded the field of knowledge in his way, shared his passion and creativity freely, and instilled in his children a love of hard work, integrity, and hopefulness. I want to be remembered for having an exceptional life, not an exceptional death.
Of course, I harbor no negative feelings to anyone else in this story: not to Mr. Nath or his family, and not to Harry and his friends. My feelings are my own and I would not presume to suggest that other people should feel as I do, especially about something so deeply felt as the attacks that day. If Mr. Nath’s’ family ever reads this message, please know that I am sorry for your loss and will keep you in my prayers. But if the day comes when I pass away, I ask that you remember the man, and forget the date… for one day, no matter how spectacular or tragic, does not make a man, nor does it unmake him.
Teen daughterhood August 26, 2011
Posted by nickmalik in Uncategorized.add a comment
I love my kids, but all three are teenagers, and there are times when they can be infuriating.
I guess if I could rewind a few years and teach my kids something that would have made a difference today, it would be this: help them with basic principles.
I had an argument with my teenager today… this time because I noticed that it had been four days since she had washed her hair. So what difference is it to me that she didn’t wash her hair? Isn’t that a self-correcting problem? Won’t she lose friends or be judged by having dirty hair? Yes and Yes.
But it still bothers me. Because my idea of “being a good dad” includes helping them to avoid those consequences by teaching and reinforcing good behavior.
As her father, I consider it important to instill simple behaviors that make sense, but to a teenager, nothing makes sense. To every request, there are exactly two responses:
- “Leave me alone”
- “I don’t want to.”
Now, I’m not good at saying “because I said so.” I guess I’ve read too many books on leadership and motivation to resort to that with my own family.
I’ve tried the “Seven Habits” thing: Clean and Green. For those of you who haven’t read the “Seven Habits of Highly Successful People,” it is a book written by a man whose business was not very successful, based on no actual research or interviews, telling people how to be successful. Fascinating. So one of his “lessons” is to set a clear and understandable goal.
The “Clean and Green” story describes how he motivated his son to perform a chore. He paid him to tend to the yard, and his goal was “clean and green.” If his son kept the yard clean and green, he’d be rewarded.
So here I am, trying to set a simple set of goals. And know what? It worked with one kid: the responsible one. The creative ones weren’t motivated by clear goals. They were motivated with figuring out how to avoid the rules and still getting what they need.
One great thing about being a dad… you have 18 years to figure it out. The moment you finally do, it’s over. You are an expert at a job you don’t have anymore. At least, until the grandkids show up. 
So my next attempt is to talk about principles. The basic reasons that we do what we do.
Not quite sure how to approach it, but hopefully my kids will understand my requests better when they understand why I’m making them.
The difference between propaganda and analysis January 30, 2011
Posted by nickmalik in Politics.Tags: budget, health care, IRS, michelle bachmann, obamacare, politics, tea party
3 comments
In the Tea Party response delivered by Rep. Michelle Bachmann (R – Minn), she stated that the health care bill would require the hiring of 16,500 IRS agents. This is wild exaggeration based on a massively flawed analysis of a vague estimate made by bureaucrats. The result is a fiction. This is an easily verified fact, so the inclusion of this number in the Tea Party response to the constitutionally mandated State of the Union address can only be considered intentional.
The intentional inclusion of false and misleading information in public information sources for the purpose of swaying public opinion is the very definition of propaganda.
What was so wrong with that number? Let’s take a look at how it came about.
- A) The Congressional Budget Office looks at the proposals for health care and notes that the IRS will have new responsibilities.
- B) The IRS (or their team at the CBO) looks at the new responsibilities, considers the costs of prior changes in legislation, and estimates that they will need to change their systems, training, procedures and staffing to cope. They reply that, over the course of 10 years, the cost could be 5-10% of their budget. (Why 5% – 10%? Interesting question. How’s this for an answer: based on the cost of implementing the Earned Income Tax Credit, they figured it would be about the same amount of complexity, so they figured it would cost the same amount. This is an erroneous assumption, as I’ll discuss below).
- C) The CBO looks at the IRS budget of $11B, multiplies that over 10 years, and notes that the total cost of the health care, on the IRS, would be $5-10B over 10 years. (5% of 110B is $5.5B. They rounded).
- D) The republican staff of the Ways and Means committee in Congress (who fund the IRS) wanted to shut down the health care debate, so they took that number and said “Voters hate IRS agents, so let’s translate that number into IRS agents!” Now these folks are not trying to be fair. In fact, these are some of the same folks that invented lies all the way through the health care debate. They are professional propagandists. From here on out, I will refer to them as the “charlatans.” What should be clear: they started with a bad result and worked backward to get it. They did not start with any rational mechanism that the CBO or IRS would use to estimate the number. The IRS costs would not consider only people. The cost of implementing the Earned Income Tax Credit included computer software upgrades, printing costs, coordination with the private sector, new capabilities, etc. Realize that much of that money went to the private sector, including those computing costs, contracting costs, retraining expenses, and travel and conference expenses. But the charlatans were not trying to be fair. They didn’t want to point out that their own private sector friends would benefit. They wanted something inflammatory.
- E) To move forward with the erroneous “staff only” assumption, the charlatans looked at the average cost of an employee at the IRS. Using gross assumptions that fail to consider the difference between contractor and full-time-employee (FTE), they estimated that cost to be about $90,000 per year. Using that assumption, the average IRS employee is paid around $60,000 a year in salary. This is borne out by a quick search of openings in the IRS. I noted agent salaries ranging from 50K to 67K. (In the private sector, where I work, about 1/3 of the total cost of an employee goes to various things like employee taxes, FICA, health insurance, disability insurance, retirement obligations, and other misc direct costs). This is also consistent with the Office of Management and Budget (which runs the Federal Government’s HR oversight function), which publishes a salary range from 16K to 120K for employee salaries. So, don’t assume IRS employees are paid a huge amount. That is a middle class wage. Realize that if the average salary is 60K, that means over 60% of the people make less (because the highest paid employees skew the scale). Your average agent probably makes closer to $50,000 per year.
- F) The charlatans took the total ten year figure, and ASSUMED that it would be spent on IRS staff (note: all kinds of staff, not only agents). To justify this assumption, they took the number ($10B) and spread it out over ten years all on their own. They did not ask the IRS how that money would be spent. They MADE IT UP. According to politfact.com, the charlatans disclosed their invented spending distribution in their report. They guessed that the costs would be spent at the rate of about $250 million per year for four years, until the health care requirements to the IRS are real, and then $1.5 Billion per year after that. Why that distribution? Well, they wanted to have the highest possible number to be spent on staff, of course. This completely ignores reality. This ignores the Internet, computers, TurboTax, H&R Block, and the provisions of the health care bill itself!
- G) Ignoring the range of the scale (5B-10B), the charlatans assumed that costs would hit of the top end of the scale (10B), distributed in an odd way (to maximize the annual costs), assumed it would all be spent on internal employees, and divided their fictional $1.5 Billion annual costs by the fully-loaded $90,000 employee cost to get the number of 16,500 employees. It’s a house of cards built on sand.
- H) The Tea Party then took that number, developed by the charlatans, and add another insane assumption. They decided that all 16,500 of those fictional people would be agents. No secretaries, managers, administration, information technology, or any other overhead. That is absurd. In a normal organization, whether it is in government or the private sector, every employee “on the production line” requires some mix of administrative personnel to back them up. In a truly efficient modern organization, automation replaces the “line” folks, but doesn’t replace the administrative folks. In fact, the number of admin folks goes up. (If you put in a computer system that replaces 10 people, you now need two more computer people to keep it running.) It’s a more efficient situation, but the ratio of “line” employees to “admin” employees changes. The IRS is such an organization and it’s level of automation is increasing.
A better analysis would use an understanding of how software and automation is used, and how enterprise architecture affects the use of computing resources. This is my area.
This house of cards falls badly when you consider the following:
The distribution of cost is completely wrong
If you do something the first time, it is expensive to set it up, but not so expensive to run it. When you assume automation, computing and the Internet, the distribution of costs are well known: the cost ramps up slowly, peaks, and then drops dramatically. After that, the operating cost is fairly stable. In the graph below, I correct these intentionally flawed assumptions with a much more realistic distribution.
That is the opposite of the cost distribution that the staffers took. The distribution would be much more in the first few years and then drop dramatically after that. This is because the cost to implement a program is spent before the program “goes live” to prepare and deliver training, develop and print new forms, coordinate with tax providers on specific rules and policies, and most importantly, upgrade the software systems to accept the new rules and correctly calculate tax liability.
Assuming this more realistic distribution, we would see a more gradual growth to the peak. By the time the provisions take hold, the admin costs are starting to drop but the collection costs increase. The first two years will be full of glitches, so let’s go with 1B in year 4, 1.5B in year 5, and 1B in year six. After that, admin costs drop fairly quickly to a maintenance level, and staff costs stabilize. My estimate for the first ten years comes much closer to 6.4B, well within the CBO range but far from the worst-case number used by the charlatans.
The CBO cost estimate was high
The CBO impact estimate was based on the cost of implementing the Earned Income Tax Credit (EITC). However, the EITC was the first time the IRS had to implement a major program, and they used that excuse to implement fundamental underlying innovations in how the entire system is operated. That cost will not be repeated (at least not to the same extent) so the cost to implement the health care plan should be on the low end of the scale.
A fair comparison would be this: a homeowner wants to add a hot tub to his master bathroom. He brings in an electrician who points out that the wiring to the bathroom is inadequate. He also points out that the wiring in the entire house is inadequate and outdated. Not only is it a fire hazard, but there are places where electricity is actually “leaking” into the ground! So the homeowner uses that excuse (the new hot tub) to rewire the entire house. New electrical box, new outlets, new wires, new circuit breakers, new safety measures, etc. That is expensive, but when it is done, the homeowner has new wires, a lower electric bill, and a new hot tub. Now, it is time to estimate the cost of a new project: changing the light fixtures in the guest bedroom. Should our intrepid homeowner take the entire cost of rewiring the house and assume that he will spend that same amount of money again? Or should he assume that the new wires can handle a change in light fixtures?
The IRS invested in new capabilities as a result of the EITC implementation. They can send payments as well as receive them. They can calculate special program eligibility. They can determine liability using newer computer systems, implemented in a distributed manner. They can leverage e-Filing and third-party software suppliers to get electronic returns submitted. They replaced the wiring.
The cost to implement the new provisions of the health care bill are not going to be small, but they won’t be huge. The reason I left the numbers as high as I did is because I know that there is some wiring left to replace. Some of the costs to implement this bill will also be used to replace some of those remaining bits of outdated technology and inefficient procedures.
The estimate of the effect on agent workload is wildly inaccurate
Why hire an agent? Because there is too much work for the existing workforce. So it is important to understand the totality of the work that the IRS looks over, and then look at the impact of the health care bill on that total work. From that, we can get an idea of how much this new work will impact their total portfolio of efforts.
First off, the reach of the IRS is enormous. In fiscal year 2009, the IRS collected more than $1.9 trillion in net revenue and processed more than 236 million tax returns (Source: IRS data book 2009). The total revenue expected to be raised by the health care bill is substantial, but in relative terms, it is not huge. According this article on CNBC, “the result is a bill that would raise a total of $438 billion in new taxes over the next decade, mainly from high-income taxpayers and fees on the health care industry.” Let’s distribute that. Tax collection begins in four years, so over the decade, the revenue would be $73 B annually. So the relative proportion of health care related income to existing revenue is 3.8%. In other words, about 4% of new revenue will be health care related. (Or, inversely, the health care bill raised the overall level of federal taxation by 4%). Therefore, the TOP limit on the impact on agents would be an increase of 4% of the total workforce.
But wait, there’s more. The vast majority of Americans have health insurance, so they would not be impacted by the taxes or fees. A Gallup poll from July of 2009 showed that 16% of adults do not have health insurance. Therefore, the tax returns impacted will be those of large employers and 16% of individuals. As large employers will largely automate their tax return generation, and the majority of health-care related revenue will come from them. Therefore, the number of new agents needed is a factor of the number of individuals who choose not to pay. (Individuals are 25 times more likely to be assessed a penalty on their tax return than a business is). Therefore, while the total bill for health insurance is 3.8% of revenue, the amount due to come from individuals is, at most, 1.9% of the revenue.
Now, add in the factor of automation. It is much easier to cheat on your taxes if you are not using TurboTax or some other tax package that calculates your tax for you or a service like H&R Block that e-files. According to the IRS, 31% of all returns in 2009 were filed electronically. That means that the impact should be limited to that 69% of the individual taxpayers who file on paper. That means the revenue impact drops again… this time to 1.31%.
In other words, we should expect the human workload to increase by as much as 1.31%.
Final math
Using this methodology, we should expect the total employment of the IRS to increase by 1.31%.
In 2009, the IRS employed 91,082 people full time. That means the total employment impact should be 1,193 new employees. At $90,000 fully loaded cost, the payroll increase we should expect from the health care bill would be $107 Million, not $1.5 Billion that the charlatans predicted. The charlatans were off by 1500%. No one can be that far off without trying to be.
Remember that not all employees are agents. In fact, according to the IRS, only 14,264 of the total workforce are Revenue Agents. That is 15.6%. That means that of those 1,193 employees, 186of them will be Revenue agents.
The IRS should expect to hire 186 new Revenue agents as a result of the health care bill.
The difference between propaganda and reality
Ms. Bachmann did not say that the IRS would hire 186 new agents. She said that they would hire 16,500 new agents. How much of a distortion is that? Her number is 88 times the size of the realistic number.
How much of a distortion is that? Let’s see. The sticker price of an average Toyota Camry is about $24,000. But if Michelle Bachmann was selling it to you, that car would cost $2,100,000. That is nearly ten times the price of the median new family home in the USA, which is only $221,900 (source US Census).
Similarly, a loaf of bread would be about $90, and a gallon of milk would be over $200.
My advice, do not buy anything from Michelle Bachmann or the Tea Party.
Explaining the 14th amendment – in non technical English January 21, 2011
Posted by nickmalik in Uncategorized.11 comments
My daughter is in middle school, and one of her assignments was to select from a small list of amendments to the US Constitution and write a short paper about it. She asked me which one, and I told her to pick the 14th amendment. Lots of meat in that one. I asked her to do some research and know what came up? Explanations useful for college-level work, but nothing for a middle schooler. Sure, there were sites that talk about the constitution in general, and about what an amendment is, but nothing that looks specifically at the 14th amendment, written in simple words for a kid to understand.
So, I’m posting this post here. I hope, through the magic of Bing and other search engines, parents and kids may find this in the future and it could be helpful. Kids: don’t steal my words for your homework. Use this site to understand, but your assignment should be in your own words. Parents: there are lots of sites that make things up about the Constitution and 14th Amendment. This post will stick to facts from actual court cases. If you feel I’ve missed something, feel free to comment. I take all comments seriously.
The Constitution and Amendments, Kids version
We all know what the constitution is, right? It is a document, hand written on paper, that writes down the “rules” that our Government follows. It defines the entire system. All the stuff about the government that you study in school comes from this one document. It is shorter than your textbook. A lot shorter. But it is a little tough to read.
Ever wonder why we have a Congress and a President? After all, England doesn’t. They have a Parliment and a Prime Minister (and the Queen, of course). We have a Congress instead of a Parliment. Why the difference?
Because a group of well educated men decided that England was OK, but we could do better. They wanted to make a “better way” to run a country. They came up with some ideas, and borrowed good ideas from other places. They wrote down those ideas. Then they argued about them. There were disagreements, but they were reasonable men, and they compromised. The final document, with all the changes that they wanted, was signed by the entire group. That document is the US Constitution.
Here’s the rub. It was written by a group of educated white men (no women) over 200 years ago. How did they get it right? To be honest, they didn’t. They made mistakes. But, to their credit, part of the constitution gives a set of rules for how to change the constitution. Each change to the constitution is called an “Amendment.”
Skipping right to the 14th Amendment
This is a short blog post, so I’m skipping to the 14th Amendment. There are plenty of parts of the constitution, and its amendments, that are really interesting and important. This one amendment is not better or more important. It’s just what I want to talk about today.
The Reconstruction Amendments – 13, 14, and 15
The civil war has just ended. Abraham Lincoln freed the slaves, and the armies of the north swept through the states of the confederacy, defeating the rebel army and burning towns and cities as they marched until the south surrendered. Super… now what? What changes to the laws should the government make in order to end slavery for good, and stop all the arguments that led to the war in the first place?
First thing to understand is that Abraham Lincoln freed the slaves without asking Congress. There was no law preventing slavery, and in fact, the “border states” still had slaves. So the 13th Amendment to the US Constitution simply sets them free. It is really short. Slavery is over, and Congress has the right to pass laws to abolish it.
That means that slaves are no longer the property of other people… but were they citizens? Could they own land? Could they get married? Would there be one set of laws for white people, and another set of laws for black people? Setting the slaves free was only the first part. Making sure that they would be treated fairly required another amendment. Here comes the 14th amendment, which says that everyone has to be treated equally. You cannot have one set of laws for white folks, and another set for black folks.
Yet, arguments remained. We have established that former slaves are free, and that the laws have to treat them fairly, and that they are citizens. However, it wasn’t clear that they had the right to vote. This is an important consideration, because if these new free men can vote, they could vote for a black person to come to Congress. Racism was still quite common. The thought of asking a black man for his honest opinion about a law would not have occurred to many people. Letting a black man write a law that a white man would have to follow seemed impossible to believe.
It is at moments like this that good people look to the principles that they live by. Our feelings can be wrong, but if we look to the principles, we can change. Thomas Jefferson wrote, in the Declaration of Independence, that the rights of men were given by God, not by governments, and that all men have the right to “life, liberty, and the pursuit of happiness.” That has to include black men, even if they used to be slaves. Even if most of those newly freed men and women could not read or write. They had the right to pursue happiness.
So the 15th amendment resolved the issue. They had the right to vote. Race didn’t matter.
Sounds like ancient history, doesn’t it? It’s all great that we ended the civil war, and we set the slaves free, and that we had to make three amendments to do it. But what does that have to do with me?
More than you think. Let’s look at the 14th Amendment in a little more detail.
The 14th Amendment
The longest of the three Reconstruction amendments, the 14th amendment was intended to resolve some big questions:
- How should the newly freed slaves be treated?
- Were they really citizens?
- Did the laws of white people apply to them?
- Do we count them when figuring out the number of representatives from each state?
- Now that the war is over, do we let former “rebels” get elected to Congress?
- Some of the southern states took out loans to pay for their part in the Civil war. Does the government have to pay those loans back?
The idea of someone being a citizen goes back to the really old laws of England, and in fact, the original authors of the constitution assumed that everone knew the old laws (called Common Law). According to those laws, if you were born in the country, you were a citizen. If you were born somewhere else, you could become a citizen. However, to make sure that it was crystal clear that the newly freed slaves were citizens, the first clause of the 14th amendment is very specific: if you were born in the US, you are a citizen. This is sometimes called “Birthright citizenship.”
Now, there is an interesting exception: if you are not “subject to the jurisdiction of the US,” being born here is not enough. This is useful for diplomats. Our laws do not apply in a foreign embassy. In the language that lawyers use, we would say that people in the embassy are not “subject to the jurisdiction of the United States.” So if the wife of the ambassador from Spain gives birth to a child in the Spanish embassy in Washington, that child was born in the US, but is NOT a US citizen. Technically, that little bit of space is part of Spain. As far as the law is concerned, the child was born in Spain. It’s a small exception but important, so it’s in the constitution.
There is some controversy in this simple idea. As you may know, there are millions of people around the world who want to come to the United States to live and work. This is a great country. But we can’t let everyone in all at once. That would create a huge problem. So we have rules that try to make it fair. It is like standing in line at a movie theatre. We all want to buy our ticket and get in the door, but we don’t push and shove, because then mean people would get inside first, and the smallest and weakest (and nicest) people may never get inside… so we stand in line and wait our turn.
So when it comes to letting people from other countries move to the USA, we have “lines” that you have to wait in. It can take many years. However, some folks don’t want to wait. They go around the line and walk into the United States. In some places, we have built fences but they climb over them, or dig under them. These people are called “illegal aliens.” Once here, if a woman has a child, her child is a US citizen, even if she is not. Is it fair to allow that child to be a citizen when their parents broke the rules?
What about the fact that rich people from other countries come the US legally, to visit the country, and stay long enough to have a baby. Then they go home (with their new baby). Twenty years later, that baby has grown up in another country, but he or she can skip around the line and come to the US as a citizen. After all, they were born here, right? These are interesting problems that we have to deal with today.
Is fairness in the constitution?
Yes. The fourteenth amendment says that “No State shall … deny to any person … the equal protection of the laws.”
This is a big one. That means that a law written for one person has to apply to all people. If you give a citizen the right to buy land, all citizens have the right to buy land. Criminal punishments have to be applied fairly as well. Unfortunately, the equal rights clause didn’t prevent segregation. Clever lawyers said that private businesses could discriminate if they wanted to, and even that school districts could create seperate schools as long as they were equal (an idea that became known as “Seperate But Equal.”)
While the words did not change, over time, the country did. After the second world war, a new generation of Americans took another look at the laws and at the 14th Amendment. The “equal protection” clause, as that bit has come to be known, was central to the Civil Rights movement. Removing segregation, so that black children could attend good schools, happened because the Supreme Court changed their mind. Reversing 70 years of prejudice and fear, the Supreme Court decided that black kids in segregated schools were not being treated fairly… they were not being “protected” by the law in a way that was “equal” to white kids.
Equal protection doesn’t just apply to “white” and “black” but anyone who is excluded. The Equal Protection clause was used to remove barriers so that women could attend military college. It has been used to decide of laws dealing with disabled people are fair, and some judges have referred to the 14th Amendment as the reason that it is not fair to prevent homosexual people from getting married. After all, the government has no reason to allow marriage between Tom and Mary while preventing a marriage between Tom and Joe. Clearly, the issue of homosexual marriage has not been decided yet, but when it is, the 14th Amendment will play a big part.
There is one more major principle affirmed by the 14th amendment that you need to understand. This is the principle of “due process.” The words are a bit hard to understand. “nor shall any State deprive any person of life, liberty, or property, without due process of law.”
What does it mean? It means that principle of fairness applies to everyone, EVEN THE GOVERNMENT. This is really important. States cannot make unfair laws and then force people to follow them. If they do, the courts can remove the laws. What makes a law unfair? A law is unfair if it lets the government kill someone, put them in jail, or take away their stuff without being fair and doing things the same way for everyone. The law applies to everyone, and no one can create unfair laws.
This is not a new idea. The notion of Due Process goes back to a really old document called the “Magna Carta” that was written 500 years before the US Constitution! The Magna Carta was written in the year 1215. It is the document that defines the governing principles of England. Our entire legal system is based on the concepts of the Magna Carta, including the idea that the government itself (even the King of England) has to follow the law. They can’t just change the law to suit their whims or say “I will take your stuff because I’m the King, and I just made a new law that says your stuff belongs to me.”
In fact, this is not the first amendment to mention “Due Process.” The fifth amendment, part of the Bill of Rights, insures that the government will be fair, but it only applies to the Federal government, not to the government of the individual states. The Fourteenth amendment specifically requires that the state governments follow the same principle.
Last bits
Most of the principles I’ve described above: birthright citizenship, equal protection, and due process, are part of the first section of the 14th Amendment. There are four other sections. However, those parts are not as interesting.
Section 2 says “we will count a citizen as a whole person.” Before the civil war, slaves were counted as 3/5ths of a person (five slaves were counted as the same as three white people). Counting is important because that is how we know how many representatives will be in Congress from each state.
Section 3 says that southerners who fought against the country cannot be part of the government, and that everyone who wants to be in the government has to agree to the constitution. The idea was to prevent the rebels from being in power.
Section 4 says that any loans that the southern states took from banks in France and England were not going to be repaid by the Federal Government.
Section 5 is really short, and says that the Congress shall write laws that enforce this amendment.
All in all, the 14th Amendment is a very important part of the US Constitution. Our lives have been changed by the simple and powerful words of the 14th amendment. There are many questions yet to be answered.
Kids: think about the ideas of fairness? Should the government be fair to its people? Should the government require us to be fair to each other?
Draw your own conclusion. There are no right or wrong answers. That is the great thing about a democracy.
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