“Your tale is of the longest," observed Monks, moving restlessly in his chair. “It is a true tale of grief and trial, and sorrow, young man," returned Mr. Brownlow, "and such tales usually are; if it were one of unmixed joy and happiness, it would be very brief.”― Charles Dickens, Oliver Twist
Hot and steamy summer days cause the mind to wander to hot and steamy days of yore. In a sweltering July in 1925 - entertainment came from the radio as Bessie Smith and Ma Rainey's blues songs mingled with Tea for Two and If You Knew Susie to top the popular music charts. Not much was happening in southeastern Tennessee so folks came from miles around to a courtroom - no matter what the temperature, the trial of John Scopes was the hottest thing that summer. The Tennessee Legislature had recently passed a criminal law prohibiting the teaching of evolution from grade school through college, punishable by a fine. With trial as theater and the ACLU advertising free representation, a civil liberty-minded group recruited Mr. Scopes, a general science teacher, to act as plaintiff challenging the law. Friends of Scopes agreed to prosecute the case. Along with an illustrious team, the great Clarence Darrow defended Scopes and William Jennings Bryan defended the law. Every person involved in the trial had agreed to his role before it began...indeed Darrow asked for a guilty verdict in order to challenge the constitutionality of the law. He got it. And, in a masterful - though, to Darrow not at all satisfying - ruling, the Supreme Court of Tennessee did not reach the constitutionality of the law but reversed on a technicality (the law required a jury to fix the fine but the jury had been dismissed prior to the judge's administration of the $100 fine in violation of the law.). It may very well be that the Supreme Court of Tennessee felt hoodwinked into the melee and chose to step aside rather than fight. If so, it deserves more kudos than anyone involved in the phony trial.
The law would remain on the books until 1967, a year before the Supreme Court of the United States would rule - on a wholly different (and as Justice Black noted, unconstitutionally vague) anti-evolution statute in Arkansas - that such types of laws infringing upon teaching and learning violate the First and Fourteenth Amendments. Considered a "landmark case", Epperson v. Arkansas in reality is as phony as the Scopes situation. Mrs. Epperson, a teacher, was not charged under the law; she sued the state under First Amendment principles even though it appears that evolution was widely taught in Arkansas schools with no threat of prosecution anywhere. By all accounts, the state's lackluster argument to uphold the statute indicated that it did not care about the outcome. Mrs. Epperson had already moved from Arkansas and was teaching - or not teaching - whatever she wished elsewhere in the country.
Indeed, these laws of fervor, many passed in the roaring 20's when the country fatigued from foreign war sought to nourish an ideal of American roots - in the Age of Prohibition while drink was scarce and crime was growing - when the first migration of African Americans from the Southern states to the great, gleaming cities of the North began - just 6 years after the 19th Amendment, women were taking charge in state houses of Texas and Wyoming - and so despite the quest to return to pre-war normalcy, everything was changing...and that scared people. So, they did what people have done for as long as people have had language and known fear - they made rules so they could feel less frightened. Rather than accepting change, they legislated a strict version of morality and decency that never has existed and never could in a diverse and growing nation.
It's not new - it happens all the time and it is happening still. On evolution, on climate change, on abortion, on marriage equality. Perhaps folks believe that if they just make a law then everything that frightens them will go away. They will "win" with laws. Legislators of the past said flat-out what they sought to prohibit whether it was alcohol or teaching evolution or intermingling among races. The statutes seem brutal through the rear-view mirror of our modern society, but it was more honest than today's deceptive approach. Folks declare that their laws are really not about evolution or climate change or abortion or marriage equality or self-defense at all - they are about balance in education which challenges children to think; a healthy scientific division on man's contribution to the planet's health, if any; a safer medical environment for women; the sanctity of traditional marriage; and the ability to feel safe under threat through the use of force. Poppycock. Many of the reasons center not on Constitutional principles or prior law, but rather a fundamentalist version of Biblical doctrine. If those who attacked the laws did so less on a sense of right and wrong and justice and fairness but on First Amendment principles the challengers might be the David to the seeming Goliath. It worked in Epperson.
Where the old approach presented straightforward language, they were flashes of rhetoric more than enforceable law. Neither Scopes nor Epperson was prosecuted by the state; both were test cases designed to ridicule the legislature in open court. But, this is no longer the case. Despite budget woes, prosecutions, convictions and sentences do not wane. Legislators are less blatant these days and more clever because they know they will face challenge in federal courts (something revolutionary in the 1920's). The Supreme Court in the mid-1920's boasted the Four Horsemen of conservatism - McReynolds, Butler, Van Devanter and Sutherland - who are petting zoo ponies to today's Gang of Four - Roberts, Scalia, Alito and Thomas. The Four Horsemen were balanced by the brilliance and courage of both Holmes and Brandeis but there is no such balance to the Gang of Four. The Four Horsemen were conservative but not mean-spirited; the same cannot be said for the Court today. Those in the Gang of Four are not conservative by any definition- they are reactionaries determined to create a nation that never existed from their own version of what is and what should be rather than the world in which they live. So, constitutional challenges today are less likely to succeed than they may have been in the 1920's.
In the 1920's legislators gave lip service to halt progress with no intent to pursue it and this seemed to satisfy the populace. Today, states are actively defying constitutional principles long decided to a Court very happy to review them while a tiny but powerful segment of society foots the bill. The Majority Leader of the House of Representatives is on record saying that Congress should not be passing laws, or even amending ones that fall short, but repealing them altogether. Just as the state legislators pretend they are not seeking to infringe on people's rights with their myriad laws on what can be taught and how medicine should be practiced and whether oil pollutes the planet or just falls harmlessly off the edge, the House Majority leader feigns an interest in effective law enforcement. With so many laws are on the books, he claims, the Executive Branch cannot possibly enforce all of them. But, of course, the Legislative Branch has nothing to do with enforcement of the laws so why would he really care? That is, pass the laws that make sense and allow the Executive Branch to enforce those it wishes to enforce.
And therein lies the rub. Regardless of the tools available, prosecution being expensive, states tend to pursue the easiest crimes, and the offenses du jour rather than destructive forces in society. There is no question that some laws are enforced disproportionately: these include, but are not limited to, overwhelming prosecution for drugs and guns in poor communities with very little prosecution for scams and fraud in wealthy communities. The state places the resources wherever it wishes. So, for example states that are changing their laws in order to eliminate abortions will allocate resources to shutting down clinics that fail to abide. Similarly states with "stand your ground" laws will not prosecute homicides where there is a claim of self-defense. It really is not the number of laws or the content of the laws that matter. For example, in Massachusetts, it is still a criminal offense to be a member of the Communist Party (or even to rent a hall to Communist Party members), to provide articles of "self-abuse" such as contraceptives, to cause a miscarriage "unlawfully" (let us know when things get too vague to interpret fairly) and to commit blasphemy, Commonwealth v. Kneeland, 20 Pick. 206 (1838)(never overturned - never again enforced).
John Boehner is leading the charge on dishonesty when he claims that in repealing laws he is seeking to fulfill the role of Congress. For reference, the role is defined and restricted in Art. 1 sec. 8. This is not to defend the state legislators trying to enact utterly unenforceable laws whether they be to deny that human activity is devastating the planet or to deny that two people of the same gender can have as valid a relationship and two of the opposite gender or to deny that women will obtain abortions or to deny that the earth is round and 4 billion years old. Passing a law - even seeking to enforce a law does not make something false true.
In most states, George Zimmerman would have been convicted of a crime after he pursued, shot and killed Trayvon Martin. We know why Martin was unarmed, but it is not clear why Zimmerman was - and Florida law does not care. Young men in poor neighborhoods carry guns because they feel afraid of other people around them they know to be carrying guns. By the "stand your ground" logic, exactly none of them is guilty of a homicide when the gun goes off - it's all self-defense, no matter who started it and no matter what the quibble. This is not a defense; it is anarchy. The traditional law of self-defense understands that people will, out of necessity, defend themselves or others by applying reasonable force under the circumstances to repel the force upon them. Allowing for deadly force in the face of non-deadly force - allowing for pursuit rather than defense - is so far removed from the roots of criminal justice as to be unrecognizable.
During the Boston Massacre trial John Adams explained that the British Regulars were armed (this was no secret; there was no such thing as concealed muskets) and many of the townsfolk on King Street were armed (again, openly, with clubs). Deadly force was met with deadly force. Outnumbered by and angry, armed mob, the soldiers fired out of fear for their own safety. At no time before the "stand your ground laws" could non-deadly force be met with deadly force, especially when, by all accounts, the person who initiated deadly force also initiated the altercation. That is not self-defense; at a minimum, it is murder mitigated to manslaughter; but in most jurisdictions, it would fall under some grade of murder. If the point of a powerful army is deterrence then the point of carrying a gun is to show it, not to use it.
But there was something more in the colonial trial of the Incident on King Street; Adams also arguably asked the jury to acquit the defendants despite any animosity toward them or any law allowing them to convict. This ancient right of the people to jury nullification has all but disappeared as the laws have gotten more and more insane. So, while Tennessee and Arkansas never had the intent to prosecute the teaching of evolution, had such prosecution occurred, a jury could have acquitted based on its distaste for the law. Query whether this same jury-nullification process would be available as against a defense at trial. For example, if the prosecution could illustrate that George Zimmerman did not act out his known ability to stand his ground under Florida law, but rather out of malice, could the jury nullify the defense provided by law rather than the instance where it can defy enforcement of unjust laws in prosecution?
It is a close question. Rarely does a legislature write laws protecting otherwise criminal acts. While jury nullification is one means of the people speaking out against the government, can it do so in order to convict rather than acquit? Oddly, had the Zimmerman matter proceeded as do most felonies, by presentment to a grand jury rather than the cowboy style of prosecution employed, it is probable that the grand jury would not have indicted. This demonstrates that the problem with the stand your ground laws. While many are asking for reconsideration of these statutes, state legislatures do not have the same zeal of repeal as does John Boehner. But it puts a difficult question to the idea of jury nullification whose goal is not to convict where the law is too lenient but to acquit when the law is too harsh.
The Scopes trial was arranged to get Dayton, TN on the map - the population had dwindled in recent years and the town needed some excitement. The trial - which began, over objection, with a prayer - was broadcast live; the judge even wanted to set up the case in a tent to accommodate the crowds. It was a carnival, a circus and all for show. All of the actors were in on the joke. Even where the people had sympathy for the law and adoration for Bryan, the law was designed as a deterrent not as punishment (the maximum penalty was a $500 fine). But court cases today are no joke; even if they put places like Sanborn, FL on the map, they are expensive and destructive.
When laws are written as backlash to a changing world, they wreak massive havoc. Prohibition and the Volstead Act gave rise to the success of organized crime. Anti-Communist fears caused many people's lives to be upended. While anti-child abuse laws have always been appropriate, the hysteria of the 1980's against day care providers was a direct assault to women working outside the home. The rise in anti-abortion legislation even as the number of abortions has remained stable or fallen and even as the procedure has become much safer (most abortions are now medically, rather than surgically, performed) is nothing more than an attempt to strike fear into women; if enacted, it will result in more back alley abortions and deaths (along with a huge expense in shuttling poor women to safe abortion providers). The rise in educational "reforms" on what people should teach and how in the age of the internet hosting free, amazing, online courses, is simply irrational.
Although they get a lot of press, many of the now-proposed laws mirror those on the books in most states, including Massachusetts. We have a strict parental consent with judicial override law; we have requirements on explaining what an abortion is and the possible effects; we have a requirement to inform patients seeking an abortion of the alternatives to the procedure. The question is not always what law is on the books, but its enforcement. Massachusetts has no interest in expending resources to police a system that seems to be functioning safely and effectively. As the statistics demonstrate, where abortion is available, fewer people have them and where it is unlawful, more people die seeking them. While states should provide individual laboratories for experimentation, we know how this one ends up; more poverty and more despair. It is ironic that the states seeking to restrict abortions are the same ones seeking to expand gun rights.
Democracy is a funny business. We want a say in what goes on in our lives but when it really comes down to brass tacks, we are not always happy with the result. In places where they elect Tea Party activists, they get bizarre, often unenforceable laws that have no bearing on better government. Those states tend to have higher poverty rates combined with weaker educational systems. They have a patchwork of criminal laws that do not resemble justice. This was not the intent or that aspiration of any of the Framers. They were men of progress and of science and of hope in the ability of people to see beyond themselves for a greater good.
There is not one of the Framers who could understand a stand your ground law; the Wild West was not part of their history - indeed their revolution was a last resort borne from repeated attempts to compromise with Britain. There is not one who could possibly understand legislating medical procedures; in their world pregnancy and childbirth was left to the auspices of midwives and medical school had not yet been created. There is not one who would support denying scientific discoveries; theirs was an ongoing quest to learn as much as possible whether by flying a kite or creating a nation. It is even doubtful that any would scoff at marriage equality; they were more progressive than people give them credit for being. But, really, democracy is not about the past: it is about the now.
With new laws seeking to restrict voting power, to deny voice, to limit access to medical, nutritional and educational services, to restrict liberty - all of which will be enforced through devoted resources at the expense of promoting the general welfare - we must hold up a mirror and ask what exactly it is that we are doing with our gift of democracy. John Scopes' "Monkey Trial" was a make-believe media event set up by those who sought to strike down a law. Contrast that frivolity with the death of Trayvon Martin and the media-driven trial resulting in the acquittal of George Zimmerman. In Scopes, the point was to make a mockery of the law; in Zimmerman, the law made a mockery of justice.
As the nation was forming, an inquisitor asked Benjamin Franklin what form of government the convention had agreed upon. He replied that we had formed a republic... "if you can keep it." It is worth keeping and fighting for, no matter how long the tale of grief and sorrow and trial and truth. It anticipates mistakes and compromise and trial and error; but gives us all the opportunity to continue to establish a more perfect union. Together. For as long as it takes.
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